Riley v Smirk

[2011] WASC 21

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   RILEY -v- SMIRK [2011] WASC 21

CORAM:   SIMMONDS J

HEARD:   3 DECEMBER 2010

DELIVERED          :   28 JANUARY 2011

FILE NO/S:   SJA 1084 of 2010

BETWEEN:   COLIN BRADLEY RILEY

Appellant

AND

MICHAEL STANLEY SMIRK
BERNADETTE NICOLE McCONNACHIE
Respondents

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE B A LANE

File No  :PE 30691 of 2008, PE 30692 of 2008, PE 30693 of 2008, PE 30694 of 2008, PE 30695 of 2008, PE 30696 of 2008, PE 31792 of 2008, PE 31796 of 2008, PE 18224 of 2009

Catchwords:

Criminal law and procedure - Appeal from sentence of a magistrate - Whether aggregate sentence bore proper relationship to overall criminality viewing offences in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender

Criminal law and procedure - Appeal from sentence of a magistrate - Effect to be given to fresh evidence relevant to sentencing - Relationship between Criminal Appeals Act s 39(1) and (3), s 14(5) and s 40(1)(e) - Proper approach to reception and use of fresh and new evidence

Criminal law and procedure - Appeal from sentence of magistrate - Weight to be given to time spent in custody outside Sentencing Act s 87 and to time on conditional bail

Criminal law and procedure - Appeal from sentence of magistrate - Discounts for pleas of guilty made or indications ones would be made which were made or given at different times

Criminal law and procedure - Appeal from sentence of magistrate - Effect to be given to delay in completion of prosecution disclosure - Effect to be given to appellant's rehabilitative progress and prospects - Effect to be given to health conditions of appellant - Weight to be given to five year old psychological report referred to in pre­sentence report and to that psychological report

Criminal law and procedure - Appeal from sentence of magistrate - Whether failure to consider or to consider properly option of suspended sentence in case of drug trafficking

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 3A
Criminal Appeals Act 2004 (WA), s 14, s 31, s 36, s 39, s 40
Criminal Code (WA), s 428 s 697
Criminal Law and Evidence Amendment Act 2008 (WA), s 35
Criminal Property Confiscation Act 2000 (WA), s 8
Firearms Act 1973 (WA), s 8, s 19
Misuse of Drugs Act 1981 (WA), s 6
Sentencing Act 1995 (WA), s 8, s 87, s 93
Weapons Act 1999 (WA), s 7, s 8, s 10

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr P S Ash

Respondents                 :     Ms G Colborne

Solicitors:

Appellant:     Peter Ash & Associates

Respondents                 :     Director of Public Prosecutions (WA)

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

Anderson v The Queen (1996) 18 WAR 244; (1997) 92 A Crim R 348

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Chivers v The State of Western Australia [2005] WASCA 97

Cuthbertson v The Queen (Unreported, WASCA, Library No 8089, 26 February 1990)

De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Ditri v The State of Western Australia [2006] WASCA 283

Doherty v The Queen (Unreported, WASCA, Library No 970518, 14 October 1997)

Eilbeck v The Queen (Unreported, WASCA, Library No 6055, 22 October 1985)

Findlay v The State of Western Australia [2007] WASC 61

Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539

Heryadi v The Queen (1998) 19 WAR 383; (1998) 98 A Crim R 578

Hiron v The Queen [2003] WASCA 310

Jogia v The Queen [2000] WASCA 331

Koushappis v The State of Western Australia [2006] WASCA 14

Lawless v The Queen (1979) 142 CLR 659; (1979) 26 ALR 161

McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Moore v The State of Western Australia [2006] WASCA 121

Narkle v Hamilton [2008] WASCA 31

Nevermann v The Queen (1989) 43 A Crim R 347

Nguyen v Lassau [2010] WASC 240

Nguyen v The State of Western Australia [2007] WASCA 114

Nolan v The Queen (Unreported, WASCA, Library No 970260, 22 May 1997)

R v Clarke & Coulton (1996) 87 A Crim R 441

R v Delaney [2003] NSWCCA 342; (2003) 59 NSWLR 1

R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166

R v Lambley (1989) 40 A Crim R 430

Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559

Ratcliffe v The Queen (Unreported, WASCA, Library No 8076, 20 February 1990)

Riley v The State of Western Australia [2009] WASC 366

Roffey v The State of Western Australia [2007] WASCA 246

Samuel v The State of Western Australia [2004] WASCA 154

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164

Smith v The State of Western Australia [2010] WASCA 150

Stjepic v Christian [2005] WASC 193

The State of Western Australia v Riley [2010] WADC 52

Urbano v The State of Western Australia [2006] WASCA 147

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

Wheeler v The Queen [2010] WASCA 2

Woodley v The State of Western Australia [2008] WASCA 92

Table of Contents

Introduction

Background
The proceedings in the Magistrates Court
The proceedings on appeal
Ground 1:  totality principle - law applicable
Ground 1:  totality - particular 1, pleas of guilty
Ground 1:  totality - particular 2, delay
Ground 1:  totality - particular 3, the rehabilitative progress of the appellant
Ground 1:  totality - particular 4, the appellant's health conditions
Ground 1:  totality - particular 5, the psychological report and the pre‑sentence report
Ground 1:  totality - particular 6, the allowance for time in custody and conditional liberty
Ground 1:  totality - particular 7, matters occurring since sentencing
Ground 1:  totality - in summary
Ground 2:  failure to consider imposing suspended sentence

Conclusion

SIMMONDS J: 

Introduction

1. This is an application for leave to appeal against sentence, ordered to be heard with the appeal itself.  The sentence was imposed in the Magistrates Court on the appellant's pleas of guilty to a number of charges spanning two time periods.  The sentencing magistrate considered the bulk of these charges to relate to drug trafficking by the appellant.  The drug was methylamphetamine.  The total effective sentence was one of 18 months' immediate imprisonment with eligibility for parole on eight charges, and a fine of $1,000, on one charge.  Of the charges for which the appellant received sentences of immediate imprisonment, two were for offers to sell a prohibited drug, methylamphetamine; one was for simple possession of that drug; two were for carrying an article with intent to cause fear; one was for possession of a controlled weapon and one was for possession of a sum of money reasonably suspected to have been unlawfully obtained.  The charge for which he received a fine was for possession of ammunition without being the holder of the requisite licence.  These eight charges were for matters occurring in early 2008.  The ninth charge, for which the appellant also received a sentence of immediate imprisonment, was for possession of a firearm without being the holder of the requisite licence or permit.  This charge was for a matter occurring nearly one year later, in early 2009, involving a search of premises where the appellant was while on bail for the charges for the earlier matters.  As a result of other matters alleged to have occurred at the same time, the appellant was also charged with further offences, including offences of possession of a prohibited drug with intent to sell or supply.  Following the later charges, the appellant's bail for the earlier charges was revoked and he was remanded in custody.  A judge of this court subsequently refused an application for bail.  However, about one year later, following a voir dire in the District Court with respect to the admissibility of certain admissions by the appellant in the course of the search, the most serious charges at least were withdrawn, ultimately leaving the charge for the possession of the firearm.  In anticipation of that withdrawal, the same judge of this court granted bail on both the earlier and the later charges.

2. The grounds of appeal as amended are two.  One is that the sentencing magistrate failed to give proper effect to the totality principle, with seven particulars provided.  One of those particulars refers to the sentencing magistrate's failure to give sufficient weight both to the period spent by the appellant on remand, between the time his earlier bail was revoked and the time he received bail again, and to the appellant's subsequent 'conditional liberty' under that bail including its conditions which were later amended.  Another of the particulars of the first ground refers to the appellant's reliance on relevant matters occurring between the date of sentence and the appeal.  The other ground of appeal is that the sentencing discretion of the sentencing magistrate miscarried by reason of her alleged failure to consider the imposition of suspended sentences.

3. This appeal, arising out of involved facts, raises some difficult issues, most notably of the proper approach to credit in sentencing for time in custody and on bail, of the use in a sentencing appeal of both new and fresh evidence and concerning the option of suspended imprisonment in a drug trafficking case.

4. I begin these reasons by providing the background to the proceedings in the Magistrates Court, before describing those proceedings, and the proceedings on appeal to this Court, including the course of the hearing and subsequent matters before me.  I then consider the grounds for appeal as amended.  The final section of these reasons is my conclusion and orders.

Background

1. On 22 April 2008, in a mobile telephone conversation intercepted by the relevant authorities, the appellant offered to sell or supply a prohibited drug, being methylamphetamine.  The quantity involved was 1 g, and the offeree was prepared to pay $400 for it.  The transaction the subject of that telephone intercept resulted in a charge by Prosecution Notice 31796 of 2008.  I am uncertain as to the original form of that charge:  the copy of the Prosecution Notice in the papers for the appeal is a charge of having offered to sell a prohibited drug to another, contrary to Misuse of Drugs Act 1981 (WA) s 6(1)(c). However, the appeal was argued on the basis, which appears to have been that of the hearing before the magistrate, that the original form of the charge was having sold the drug, a form which on 18 August 2009 was amended by the prosecution to the offer form of the charge. It was to this form of the charge that the appellant, for some time it would appear prior to the date ultimately listed for the trial of the present charge with others, on 21 June 2010, offered to plead guilty. That trial did not commence, and the appellant pleaded guilty to the charge on 22 June 2010. I call this offence the first drug offer offence of 2008.

2. On 25 April 2008, in another mobile telephone conversation intercepted by the relevant authorities, the appellant offered to sell or supply a prohibited drug, being methylamphetamine.  The quantity involved on this occasion was 1.75 g, and the amount involved was $900.  The transaction the subject of the 25 April 2008 telephone intercept resulted in a charge by Prosecution Notice 31792 of 2008, of having sold a prohibited drug to another, contrary to the same provision of the Misuse of Drugs Act as for the transaction the subject of the 22 April 2008 intercept, s 6(1)(c). On 18 August 2009 the charge was amended by the prosecution to a charge of offer to sell or supply. It was to this form of the charge that, as for the charge of the first drug offer offence of 2008, the appellant, for some time it would appear prior to the date ultimately listed for the trial of the two charges, with others, 21 June 2010, offered to plead guilty. That trial did not commence, and the appellant pleaded guilty to the amended charge for the transaction the subject of the 25 April 2008 telephone intercept the next day, on 22 June 2010. I call the offence arising out of the telephone intercept of 25 April 2008 the second drug offer offence of 2008.

3. I should add that it appears there was no material before the sentencing magistrate, and there was none before me, describing the purity of the methylamphetamine for either offence.

4. On the material before me for the appeal, the appellant was also charged with a further nine offences of a similar kind, committed on various dates between 23 April 2008 and 3 May 2008, three of which were formally dismissed by the magistrate at the hearing on 22 June 2010 with, so far as appears to me, others having being dismissed on one or more previous occasions.  It appears to have been common ground before me that at the time when the prosecution indicated that at least some of these charges would not be proceeded with the appellant gave an indication he would plead guilty to each of the first drug offer offence of 2008 and the second drug offer offence of 2008.

5. On 6 May 2008 police stopped the appellant while he was driving his vehicle and they searched the vehicle.  They found him in possession of $15,702.70.  The appellant was charged by Prosecution Notice 30696 of 2008 with being in possession of $15,702.70 which was reasonably suspected to have been unlawfully obtained, contrary to Criminal Code (WA) s 428(1). The appellant was questioned about the sum and said $5,500 was his and the rest belonged to others he declined to identify. The appellant pleaded guilty to that charge on 22 June 2010. I call this offence the possession of money offence of 2008.

6. In the course of the same search of the vehicle the police also found a number of other items which resulted in further charges being laid.

7. Police found a small clipseal bag containing 0.2 g of methylamphetamine in a cigarette packet the appellant had in his shirt pocket.  The appellant was questioned about this and said the drug was for his personal use.  The appellant was charged by Prosecution Notice 30691 of 2008 with being in possession of a prohibited drug with intent to supply it to another, contrary to Misuse of Drugs Act s 6(1)(a). At the time that charge was laid the appellant had indicated he would plead guilty to a charge of simple possession. On or about 22 June 2010, the charge was amended to one of an offence of possession of a prohibited drug, contrary to Misuse of Drugs Act s 6(2), and the appellant pleaded guilty to that charge. I call this offence the simple drug possession offence of 2008. I should note that there was no material before the sentencing magistrate, and there was none before me, describing the purity of the methylamphetamine involved in the present offence.

8. Police also found the appellant was carrying a silver pocket knife.  The appellant was charged by Prosecution Notice 30693 of 2008 with carrying an article, the pocket knife, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it to cause any person to fear that someone will be injured or disabled by its use while not being a person exempted under Weapons Act 1999 (WA) s 8(3) or (5) or s 10, contrary to s 8(1)(b). On 22 June 2010 the appellant pleaded guilty to this charge. I call this offence the pocket knife offence of 2008.

9. Police also found the appellant was carrying a hunting style knife.  The appellant was charged by Prosecution Notice 30694 of 2008 with being in possession of an article, the hunting style knife, not being a firearm, a prohibited weapon or a controlled weapon with the intention of using it to cause any person to fear that someone will be injured or disabled by its use while not being a person exempted under Weapons Act s 8(3) or (5) or s 10, contrary to s 8(1)(b). On 22 June 2010 the appellant pleaded guilty to this charge. I call this offence the hunting style knife offence of 2008.

10. Police also found the appellant was in possession of a baton.  The appellant was charged by Prosecution Notice 30695 of 2008 with being in possession without lawful excuse of a controlled weapon, the baton, not being a person exempted under Weapons Act s 10, contrary to s 7(1). On 22 June 2010 the appellant pleaded guilty to this charge. I call this offence the baton offence of 2008.

11. Police also found two rounds of .22 Magnum ammunition on the floor beneath the passenger seat of the vehicle, and one round of .22 ammunition in a rear pocket of the passenger seat.  The appellant was charged by Prosecution Notice 30692 of 2008 with being knowingly in possession of that ammunition without the being the holder of the requisite licence or permit for such ammunition and not being a person exempted under Firearms Act 1973 (WA) s 8, contrary to s 19(1). On 22 June 2010 the appellant pleaded guilty to that charge. I call this offence the unlicensed ammunition offence of 2008.

12. I call all of the foregoing charges the 2008 charges.  I call all of the offences to which the appellant pleaded guilty on 22 June 2010 the 2008 offences. 

13. In May 2008 the appellant was granted bail on all of the 2008 charges.

14. On 3 March 2009, while the appellant was on bail on the 2008 charges, police executed a search warrant at a house where the appellant was with others.  As a result of what the police found, the appellant was charged (the 2009 charges) with offences including two charges of possession of a prohibited drug with intent to sell or supply (the drugs possession with intent charges of 2009), a charge of possession of ammunition without the requisite licence or permit (the unlicensed ammunition charge of 2009) and two charges of possession of firearms, namely handguns, without being the holder of the requisite licence or permit in circumstances of aggravation, namely, where he was carrying both the firearms and a prohibited drug (the unlicensed firearms charges of 2009).  As will be seen, of the 2009 charges, the appellant was ultimately only required to plead to one of the unlicensed firearms charges of 2009, made by Prosecution Notice 18224 of 2009, after it had been amended to delete the circumstance of aggravation.  On 22 June 2010 he pleaded guilty to that charge, of being in possession of a firearm, namely a .357 calibre Magnum Revolver handgun, whilst not being the holder of a licence or permit under the Firearms Act entitling him to do so and not being exempted by s 8.  I call this the unlicensed firearm offence of 2009.  All of the others of the 2009 charges were either withdrawn or dismissed for want of prosecution.

15. On 3 March 2009, as a result of the 2009 charges, the appellant was remanded in custody and his bail for the 2008 charges was revoked.  He applied to a magistrate for bail, but bail was refused.  He later applied to this court for bail, but by a decision published 7 December 2009 bail was refused:  Riley v The State of Western Australia [2009] WASC 366 (Hall J). His Honour concluded that he was not satisfied exceptional reasons existed for its grant, as required for such grant by Bail Act 1982 (WA) sch 1 pt C cl 3A. That provision applied because the appellant was a person charged with having committed 'serious offences' within sch 2 (the drugs possession with intent charges of 2009) while on bail for other such offences (the charges of what became the first drug offer offence of 2008 and of what became the second drug offer offence).

16. On 20 April 2010 Davis DCJ on a voir dire, in relation to the drugs possession with intent charges of 2009, determined certain evidence in the form of admissions made by the appellant in a video record of the search of 3 May 2009 was inadmissible.  This determination was that the appellant did not make them in the exercise of a free choice to speak or be silent.  See The State of Western Australia v Riley [2010] WADC 52 (Riley WADC). 

1. On the following day, 21 April 2010, Hall J of this court granted the appellant bail on all of the charges he faced after his Honour was told the state did not oppose the grant, and there was a realistic possibility the drugs possession with intent charges of 2009 would be discontinued as a result of the decision in Riley WADC.  The indictments for those charges were subsequently discontinued.

The proceedings in the Magistrates Court

1. On 21 June 2010 the trial listed for four days did not commence.

2. On 22 June 2010 the appellant appeared before Magistrate Lane and pleaded guilty to the 2008 offences and the unlicensed firearm offence of 2009.  That day the prosecution presented submissions and counsel for the appellant began the plea in mitigation.  The magistrate ordered a pre‑sentence report and granted the appellant bail to appear on 22 July 2010.

3. On 22 July 2010 following further submissions for the appellant and a reply from the prosecution the magistrate adjourned the hearing to 9 August 2010 and extended the appellant's bail.

4. On 9 August 2010 after the presentation of further submissions for the appellant and a reply for the prosecution the magistrate delivered her sentencing remarks.  She sentenced the appellant on his pleas of guilty as follows:

   •the first drug offer offence of 2008: 12 months' imprisonment, concurrent;

   •the second drug offer offence of 2008: 12 months' imprisonment, concurrent;

   •the possession of money offence of 2008: 12 months' imprisonment, concurrent and forfeiture of $15,702.70;

   •the simple drug possession offence of 2008: 2 months' imprisonment, concurrent;

   •the pocket knife offence of 2008: 3 months' imprisonment, concurrent;

   •the hunting style knife offence of 2008: 3 months' imprisonment, concurrent;

   •the baton offence of 2008: 6 months' imprisonment, concurrent;

   •the unlicensed ammunition offence of 2008: $1,000 fine and order for forfeiture; and

   •the unlicensed firearm offence of 2009: 6 months' imprisonment, cumulative.

   This made a total effective sentence of 18 months' immediate imprisonment.  The appellant was also made eligible for parole.

The proceedings on appeal

1. By appeal notice dated 12 August 2010 the appellant applied for leave to appeal against sentence on a single ground, that the 'sentence imposed was excessive'.  Particulars were provided. 

2. On 23 August 2010 Jenkins J of this court granted the appellant bail for the hearing of the appeal.

3. On 20 September 2010 Jenkins J ordered, among other things, that the application for leave be heard at the same time as the appeal.

4. By document dated 1 December 2010 the appellant sought leave to amend the single ground of appeal, to add a second ground of appeal, and to add a further particular.  There was no objection to any of those amendments before me, and I considered, on the test in Koushappis v The State of Western Australia [2006] WASCA 14 [9], [13] (Roberts‑Smith JA), they should be allowed to be made.

5. The grounds of appeal as amended are as follows:

   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.

6. The hearing of the appeal before me occupied a full hearing day.  As a result of the course of the hearing I sought assistance from counsel with respect to a number of issues raised, and this resulted in not insubstantial additional materials from both counsel provided to me in the period leading up to 24 December 2010.

7. I turn now to the grounds of appeal.

Ground 1:  totality principle - law applicable

1. I take the law for the most part from Nguyen v The State of Western Australia [2007] WASCA 114 [4] ‑ [5] (Steytler P, McLure JA & Miller AJA agreeing):

   There are two grounds of appeal.  It is necessary to deal with these grounds only to the extent that they rely upon a failure to give proper effect to the totality principle, that having been the only contention that was ultimately pursued.  So far as it is relevant to the appellant's contentions, that principle requires that the aggregate sentence imposed upon an offender bear a proper relationship to the overall criminality of the offending behaviour when the offences are viewed in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender:  Postiglione v The Queen (1997) 189 CLR 295 at 307 - 308 per McHugh J and Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. Counsel for the appellant contends, in this respect, that the aggregate sentence imposed was disproportionate, having regard for the early pleas of guilty, customary sentencing standards in respect of offences of this kind and the appellant's antecedents.

   When dealing with an appeal against sentence, the Court may not substitute its own opinion for that of a sentencing Judge merely because it would have exercised its discretion differently.  It will only interfere where the appellant has demonstrated that the sentencing Judge failed properly to exercise his or her discretion:  Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672. Error might be inferred in a case in which the result is unjust or unreasonable because it is manifestly excessive: Dinsdale v The Queen (2000) 202 CLR 321.

2. In this case I took ground 1 to be the contention that the aggregate sentence of 18 months' imprisonment was disproportionate, having regard for the items in particulars 1 ‑ 6 and, as indicated by particular 7, taking account of certain matters which had occurred between the date of sentencing and the date of the appeal.  On Nguyen [12] ‑ [15] I took the contention to be that the aggregate sentence of imprisonment was outside the sound exercise of sentencing discretion called for by the totality principle.

3. However, in my view, the matters subsumed by particular 7, and certain related matters, require special treatment at this point.

4. In respect of the matters subsumed by particular 7, it might be suggested that it would not be possible to infer error in such cases.  However, at least where the relevant matter casts new light on circumstances existing at the date of sentencing, as where a possibility has become an actuality, there is authority that the court may intervene on the basis of that matter, even although there was no error in the exercise of sentencing discretion on the material before the sentencing judge:  see Anderson v The Queen (1996) 18 WAR 244; (1997) 92 A Crim R 348, 246 (Malcolm CJ), 258 (Steytler J), 248 (Murray J); Jogia v The Queen [2000] WASCA 331 [29] ‑ [31] (Wallwork J); and McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428 [43] (McKechnie J, Malcolm CJ & Wheeler J agreeing). Such intervention, as those authorities appear to indicate, would be on the basis of a miscarriage of justice.

5. The 'appropriate principles' for the introduction of 'fresh evidence' (in the sense of evidence of matters not before the sentencing judge) were summarised in McMaster [43] (McKechnie J) as follows, drawing on Anderson as well as authorities in other states, but without reference to Jogia:

   (a)If the fresh evidence relates entirely to events which have occurred since the sentence, it may only be receivable if there has been an error in sentencing discretion by the Judge.

   (b)If there is no error, the evidence is inadmissible, and under Criminal Code s 689(3) the Court 'shall dismiss the appeal'.

   (c)In consequence, if subsequent events have made a sentence, appropriate when passed, manifestly excessive, that is a matter for the Executive and the prerogative of mercy, not the Court of Criminal Appeal.

   (d)Fresh evidence may be admitted in discretion to bring before the Court facts which were in existence at the time of the imposition of the sentence but were not known to the sentencing Judge.

   (e)Fresh evidence may be admitted in discretion to explain facts which were before the sentencing Judge so as to put them in a new light.

   (f)Even when the discretion to admit fresh evidence is enlivened, the discretion will only be exercised in exceptional or unusual cases.

6. As will be seen, the appellant has sought to put into evidence matter occurring since the sentencing which includes matter within (e) above but also other matter which counsel for the respondent has contended cannot be regarded as explaining facts which were before the sentencing magistrate so as to put them in a new light.  Nor, I would add, is it clear that in any event the admission of matter of either kind put forward by counsel for the appellant represents an exceptional or unusual case.

7. However, McMaster and the other authorities were decided before the coming into force of Criminal Appeals Act 2004 (WA) s 14(5) and s 40(1)(e). The former provision is for appeals from a court of summary jurisdiction to a single judge of this Court sitting in the General Division, while the latter provision is for any appeal to a division of this Court.

8. Criminal Appeals Act s 14(5) reads as follows:

   On an appeal against a sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.

9. There was a provision in almost identical terms, mutatis mutandis, for appeals from superior courts to the Court of Appeal in Criminal Appeals Act s 31(2) which read as follows:

   In deciding the appeal, the Court of Appeal may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.

   That provision was repealed effective 27 April 2008 by Criminal Law and Evidence Amendment Act 2008 (WA) s 35.

10. Criminal Appeals Act s 40(1)(e), which had a counterpart for appeals in former Criminal Code s 697, reads as follows:

    (1)For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

    …

    (e)admit any other evidence;

    The term 'appeal court' is defined in s 36 as 'the division of the Supreme Court that has jurisdiction to hear the appeal'.

11. Criminal Appeals Act s 40(1)(e), but neither s 14(5) nor former s 31(2), is provided for in another provision applicable to any appeal, s 39(3) which needs to be read with s 39(1), as follows:

    (1)An appeal court must decide an appeal on the evidence and material that were before the lower court.

    …

    (3)Subsection (1) does not affect the power of an appeal court in section 40 to admit evidence.

12. The effect of s 39(1) and (3) on the construction of s 14(5) is not clear to me: no argument on the point was addressed to me and I could find no authority addressing that point. My own preliminary view is that there is no effect: see DC Pearce & RS Geddes, Statutory Interpretation in Australia (6^th ed, 2006) [4.32] and authorities there cited.

13. Nor was any argument addressed to me, and I was unable to find any authority, dealing with the way in which a court should approach the overlap between s 14(5) and s 40(1)(e) in sentencing appeals. My own preliminary view is that, notwithstanding s 39(1), s 14(5), as a special power, is the source of the power to admit evidence of additional matters that the subsection refers to, while s 40(1)(e), as a more general power, is the source of the power to admit evidence of additional matters in other cases. See Pearce & Geddes [4.32].

14. I should note that the view has been expressed, in Wheeler v The Queen [2010] WASCA 2 (Wheeler JA), a case where leave was sought to adduce evidence of matter that had occurred since sentencing and where it was contended that 'the true significance of facts in existence at the time of sentence which, had they been known to the learned sentencing judge, would have resulted in a different sentence' [5], that in relation to the reception of the evidence (under s 40(1)(e)) [13]:

    The principles governing that question may be regarded as not entirely clear:  see Urbano v The State of Western Australia [2006] WASCA 147, at [8] and [51].

15. Counsel for the respondent as I understood her submissions appeared to contend before me, without reference to any of the authorities I have referred to save for Jogia, that the effect of s 14(5) (and I presume s 40(1)(e) in sentencing appeals) is that, unless the evidence of the matter occurring since sentencing might be received under the principle in McMaster (e), being that referred to in Jogia, the evidence could only be received for the purposes of re‑sentencing the appellant, where the appeal against sentence had been upheld on other grounds. 

16. However, even allowing for the qualification in Wheeler [5], I consider this to be too narrow a view of the effect of s 14(5) and s 40(1)(e), by reference to Urbano v The State of Western Australia [2006] WASCA 147.

17. Urbano was an appeal against sentence for one count of sale and supply of methylamphetamine and one count of possession of that drug with intent to sell or supply.  The appellant sought leave to adduce evidence by way of his affidavit sworn after the sentencing that a sum of money confiscated under Criminal Property Confiscation Act 2000 (WA) s 8 was lawfully acquired. Such confiscation in appropriate circumstances may be a mitigating factor in sentencing: Urbano [5] (McLure JA, and authorities there cited). In that case leave to adduce the affidavit was refused, for the reasons which appear in the judgment of McLure JA [8] ‑ [10] and that of Pullin JA, Martin CJ agreeing [51] ‑ [53].

18. McLure JA [8] ‑ [10] said this, referring to Lawless v The Queen (1979) 142 CLR 659; (1979) 26 ALR 161 among other authorities:

    The first question is whether the appellant should have leave to adduce the further evidence. The parties did not make any submissions as to the source of this Court's power to admit the further evidence. There are two possible sources: the specific power in s 31(2) or the general power in s 40(1)(e) of the Criminal Appeals Act 2004 (WA). Further, the parties approached the matter on the basis that any discretion was to be exercised by reference to the common law rules relating to the admission of fresh or new evidence. That matter was considered by Pullin JA in de la Espriella‑Velasco v The Queen (2006) 31 WAR 291 at 330 ‑ 331. See also CDJ v VAJ (1998) 197 CLR 172 at [52] - [102]. As the issue was not in contest in the appeal, I will proceed on the assumption made by the parties whilst reserving my position on the question.

    Fresh evidence is evidence which either did not exist at the time of the proceedings or which could not then with reasonable diligence have been discovered.  New evidence is evidence which was available at the proceedings or which could, with reasonable diligence, then have been discovered:  Beamish v The Queen [2005] WASCA 62 at [9]. A sentence will only be set aside on the basis of new evidence if that evidence establishes that the sentence under challenge should not have been imposed: Lawless … at 676 per Mason J.

    The further evidence is new not fresh evidence.  It was available at the time of sentencing.  It could, and should, have been adduced at that time.  The public interests in the finality of litigation and the due and proper administration of justice do not cease to apply because of the criminal nature of the proceedings.  In the common law rules, these interests are reflected in the requirement that the new evidence must establish that the sentence should not have been imposed.  I would refuse leave to adduce the further evidence and the associated application to amend the grounds of appeal because the further evidence, even if accepted, falls well short of establishing that the appellant should not have been sentenced to a total term of 8 years (R v Geesing (1985) 38 SASR 226 at 229). This conclusion is best explained in the course of addressing the existing ground of appeal that the total sentence was manifestly excessive.

19. Pullin JA [51] ‑ [53] said this:

    I have explained the legal issues arising concerning the admission and use of further evidence on the hearing of an appeal in de la Espriella-Velasco v The Queen (2006) 31 WAR 291. In summary, s 39(1) of the Criminal Appeals Act 2004 states that this Court must decide an appeal on the evidence and material that was before the lower court. Section 39(3) states that subs (1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) empowers the court to admit other evidence. As I indicated in de la Espriella-Velasco at [152], the distinction between 'fresh' and 'new' evidence continues to be of importance. The distinction between 'fresh' and 'new' evidence is well understood and is explained in Mickelberg v The Queen (2004) 29 WAR 13 at 410 - 411. The fact that a tactical decision may explain why evidence was not proffered in a criminal case would be relevant to the court's decision about whether new evidence should be admitted at the hearing of an appeal. This is explained in de la Espriella‑Velasco at [153] - [154].

    No evidence at all has been proffered to explain why the appellant failed to place any evidence before the sentencing Judge to show that he would forfeit (as he believed) or had already forfeited (as I have concluded) $101,000 of lawfully acquired property.  In the absence of any such evidence, it is open to conclude that the failure to do so was for misplaced tactical reasons.  As I have mentioned, the submission made on his behalf states that the appellant believes there are further proceedings in the Supreme Court necessary to bring about a forfeiture of his property.  Implicit in this submission was that the appellant believes that in the proceedings which he believes are still to be decided, he will be able to gain a determination that he lawfully acquired the $101,000.  His belief that he will not forfeit his money until some further proceedings are determined is a belief based on a failure to understand the provisions of the Confiscation Act.  Nevertheless, this belief may well have led him to believe that claiming the money was his (as a first step to proving it was lawfully acquired it) would have been to his disadvantage.  This would provide the misplaced motive for a tactical decision not to put evidence before the sentencing Judge to show that the property was his and was lawfully acquired.

    If I am wrong about there being misplaced motive and a tactical decision, it would not alter the outcome because the Court has been given no evidence at all about why the material contained in the appellant's affidavit was not put before the sentencing Judge. There is therefore no foundation for the application for an order that this further evidence should be admitted pursuant to s 40 of the Criminal Appeals Act. I would therefore refuse the appellant's application under s 40 of the Criminal Appeals Act to admit the appellant's affidavit.

1. I also note from De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [157] ‑ [158] (Pullin JA) the following, referring to Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 and Nolan v The Queen (Unreported, WASCA, Library No 970260, 22 May 1997) (Malcolm CJ, Pidgeon & Murray JJ):

   The interests of justice are served by finality in litigation.  The interests of justice will not usually be served by allowing an appellant to adduce evidence on an appeal if the appellant made a tactical decision at trial not to call that evidence, or if the appellant suffered Nelsonian blindness and for that reason did not call that evidence at trial.  Having said that, the overriding consideration however, must be whether or not the further evidence demonstrates that there has been a miscarriage of justice.  If the evidence is 'fresh evidence', then the court only has to reach a conclusion that there would have been an increased chance of acquittal in order to decide that there was a miscarriage of justice.  It must be shown that the jury would have been 'likely' to have entertained a reasonable doubt; or 'might' have; or there was a 'significant possibility' of that being so.  Mickelberg v The Queen (ibid) at 275; Roth-Beirne v The State of Western Australia [2005] WASCA 170 at [40]).

   However, if the evidence is 'new' evidence, then it is not enough merely to show an increased chance of acquittal: Tkacz v The State of Western Australia [2005] WASCA 108 at [49]. The 'new' evidence must be strong enough to show that the appellant is innocent or raises such a doubt that the Court concludes that the accused 'should not have been convicted': Lawless (supra) at 676, Mickelberg v The Queen (2004) 29 WAR 13 at 413, Nolan (supra) at 62 - 63; R v Easterday (2003) 143 A Crim R 154 at [371] at 206 and Hillstead v The Queen [2005] WASCA 116 at [61].

2. In summary, in my view I should take the effect, for my purposes, of s 14(5) (for evidence and material not before the sentencing magistrate that occurred since the date of conviction) and of s 40(1)(e) (for evidence and material not before the sentencing magistrate that did not so occur) to be that I should approach the reception of evidence of both kinds in terms of the distinction between fresh and new evidence in Urbano, mindful of the reluctance of courts to receive evidence in an appeal which it appears was not placed before the sentencing judge for tactical reasons. Particular 7 relates to evidence which is fresh evidence which falls within s 14(5).

3. Further, I am of the view that the consideration of any evidence which would otherwise be caught by s 39(1) is relevant only to a miscarriage of justice, not error by the sentencing magistrate. However, no objection to ground 1 as not sufficiently stating that matter was taken for the respondent. I consider that ground 1 is sufficiently expressed to include such miscarriage, after account is taken of particular 7.

4. Finally, I should note the other limb of the totality principle than that in Nguyen [4] (above). That other limb is described in Roffey v The State of Western Australia [2007] WASCA 246 [25] (McLure JA, Steytler P & Miller JA agreeing) as follows:

   The second limb is that the court should not impose a 'crushing' sentence.  The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release:  Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

5. As I will indicate below, there are matters subsumed by ground 1 to do with the rehabilitative progress made by the appellant and his health condition which might be taken as intended to go to the second limb.  However, in my view, a sentence of the present length cannot readily be taken as 'crushing', even after account is taken of that progress and that condition.  In my view there is nothing in the matters to do with that progress or that condition which would indicate that service of the term of imprisonment, even without the grant of parole, would destroy any reasonable expectation of a useful life after release.  I will return to the second limb briefly below.

6. I consider that ground 1 should be seen as going only to the first limb of the totality principle.

Ground 1:  totality - particular 1, pleas of guilty

1. The contention for the appellant is that the magistrate misstated the discount for a plea of guilty at an early opportunity; she had arrived at an insufficient reduction by reference to the negotiations of the appellant with the police and the state that resulted in the charges to which the appellant was ultimately required to plead; and she had failed to note the need to vary the discount for the pleas of guilty as between those charges.

2. As to the first, my attention was drawn to the statement by the magistrate (22 July 2010, ts 12) that a 25% reduction for 'an early plea of guilty on the fast‑track system' was 'the usual limit … depending on the circumstances'.  An early plea in the fast-track system is accepted to be one made or indicated (see Sentencing Act 1995 (WA) s 8(2)) before the prosecution has been required to produce a brief of evidence (see Criminal Law in Western Australia, looseleaf, as at 5 December 2010 [SA s 8.71]). 

3. In fact, as counsel for the appellant accepted, for such a plea, or its equivalent in the Magistrates Court, the courts have specified a range.  That range is expressed in terms that '[o]rdinarily, in this State, fast‑track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances':  Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37] (Steytler P, Wheeler, McLure & Buss JJA).

4. However, as Moody [37] also states, referring among other authorities to Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339:

   In particular cases the reduction might be less (where, for example, there is a late plea and an absence of any real remorse) or more, although a reduction should not be so excessive as to undermine the accusatorial feature of the criminal justice system:  R v Shannon (1979) 21 SASR 442, 449 (King CJ); and Cameron [65(3)] (Kirby J). The amount of the reduction is discretionary. Sentencing judges 'must be accorded a wide measure of latitude which will be respected by appellate courts': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336 (Kirby J); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. In Cameron [65(2)] Kirby J said:

   'Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations (cf Pearce v The Queen (1998) 194 CLR 610 at 624 [46]; Ryan v The Queen (2001) 206 CLR 267 at 278 [33]). Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances.'

   See also Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559 [21] (McKechnie J, Malcolm CJ & Anderson J agreeing).

5. In my view, on Moody [37] and Radebe [21], the magistrate, in describing 25% as the 'usual limit … depending on the circumstances' for early pleas on the fast‑track system did not err, as she allowed for the exercise of discretion to reduce or increase the discount.  Further, on those authorities, it was not made clear to me she would have erred in applying a discount of 25% (or less) in this case, even although such a discount was towards the lower end of the range.  In any event, it does not seem to have been in contest before me that the only plea that could have been described as an early plea on the fast-track system, or its equivalent in the Magistrates Court, was that to the charge of the simple drug possession offence of 2008.  This was the only charge for which the appellant had made his plea, or given an indication such a plea would be given, at the time the charge in its original form was laid.

6. Counsel for the appellant also put to the magistrate that the plea to what became the unlicensed firearm offence of 2009 should be equivalently treated, as the appellant had pleaded guilty to it on the first occasion the charge of that offence was put to him in its amended form.  However, I do not find it easy to see why that should be so, where there is nothing in the material before me to indicate that the appellant had offered to plead to the charge when it was put to him in its original form, including a circumstance of aggravation.  Sentencing Act s 8(2) refers to the earliness, not only of making a plea of guilty but also of any indication that one will be made, as producing greater mitigation. It seems to me from that provision that where no indication was given at the earlier time, the discount for the plea ultimately entered could properly reflect an accounting for that fact.

7. At the same time, I note that counsel for the respondent conceded that the plea of guilty to the unlicensed firearm offence of 2009 was an early one to which the range for fast‑track pleas could apply, on the basis that as soon as the charge was amended a plea of guilty was entered.  In my view, this concession was appropriate but the point in the range should be towards the lower end, and could properly be at the lowest end, to reflect the accounting I have indicated.

8. It is not evident to me that the magistrate did not in fact recognise matters of the kind, just described, in her sentencing remarks to which counsel for the appellant took me for the purposes of the present submissions.  That passage in full reads as follows (9 August 2010, ts 9):

   The mitigating factor is Mr Riley's plea of guilty.  Only after considerable negotiation with the police and the crown it is that many of the charges were dismissed or amended, that he pleaded guilty as soon as that occurred.

   However, there is no equivalent recognition in the sentencing remarks of the points I reach next.

9. Before me, counsel for the appellant contended that the appellant's pleas of guilty to the charges of the first drug offer offence of 2008 and the second drug offer offence of 2008 should be equivalently treated to the plea to the charge of the simple drug possession offence of 2008.  I understood that this was, in part, because the appellant had indicated he would plead guilty to the amended forms of the charges from or about the time they were amended, although not earlier.  I understood there had not been a plea at that earlier time as counsel had indicated to the magistrate that, although the appellant had offered to plead guilty 'as with the possess methamphetamine charges for some time', counsel could not 'advance ... the proposition that he should be entitled to the full 25 per cent discount in relation to those matters' (22 July 2010, ts 14).  However, as I understood counsel for the appellant's submissions, the case for the equivalence of treatment contended for, notwithstanding that difference, derived from the fact that the prosecution case in relation to what became the charges of relevant offences was not 'watertight', as indicated by the withdrawals of other like charges as part of the plea negotiation at the time.  This was also indicated by the completion of the prosecution case after an unexplained delay of some 16 months by a witness statement of a police officer dated 28 August 2009 identifying the appellant's voice in telephone intercepts, where the police officer's evidence in relation to his exchange with the appellant concerning what became the drugs possession with intent charges of 2009 was the subject of an 'express ruling of improper and dishonest conduct' in Riley WADC.  I took this submission to be that a greater discount was warranted, by reference to the factors of unexplained delay in the completion of the prosecution's disclosure, the withdrawal of other charges and the witness statement of the police officer, for what they said as to the weakness of the prosecution case, and for other (unspecified) reasons.

10. For the reasons already indicated I consider that the pleas of guilty to the first drug offer offence of 2008 and the second drug offer offence of 2008 should be treated at least as favourably to the appellant as his plea to the charge of the unlicensed firearm offence of 2009, on the basis that as soon as the amended form of the charge became clear the appellant made his plea, or indicated he would make such a plea.

11. As to the other factors of delay on its own and the strength or lack of it of the prosecution case, I deal with the latter first.  Undoubtedly, the quantum of the discount should be affected by the strength of the prosecution case:  the stronger the case, the less the discount that should be given, other things being equal.  See Findlay v The State of Western Australia [2007] WASC 61 [34] (Martin CJ); and Moody [38]. However, in my view, nothing should be inferred from the plea to a lesser form of the offence (offer to sell rather than sale), as it is the strength of the case for the charge pleaded to, not that of the original form of the charge, which is relevant. Nor, in my view, should anything be inferred from the withdrawal of like charges, or delay in completing disclosure, for similar reasons. It is the strength of the case finally assembled that falls to be assessed.

12. However, I do accept that in performing that assessment it is appropriate to consider any vulnerability of important evidence for the prosecution.  Here that evidence is said to be the voice identification evidence of the police officer referred to.  I should note immediately, as counsel for the appellant conceded, this witness statement was not put to the magistrate, for the purpose for which it was put to me or indeed for any purpose.  However I do not consider it should be treated as new evidence for the purpose of Urbano as discussed above.  That is because I should assume there was at least the possibility that the evidence was before the magistrate as part of the prosecution brief.  Certainly counsel for the respondent did not contend otherwise, or indicate she objected to my reception of the witness statement for the purposes of the present ground.

13. I accept that, if the voice identification evidence of the police officer was of importance for the prosecution case, evidence which could be adduced that there had been a judicial finding he had acted dishonestly or improperly in giving the evidence he had in relation to the appellant in a related matter could weaken the prosecution case:  see JD Heydon, Cross on Evidence (8^th Aust ed, 2010) [19030]. Counsel for the respondent conceded that if there were no other identification evidence than the facts the telephone intercepts were for a mobile telephone linked to the appellant's partner and the other person in the conversations used the name 'Brad' by which the appellant was known, the police officer's identification evidence would be necessary or at least important. Counsel for the respondent was not able to point to any other voice identification evidence. Nor, it seems to me, must the appellant show that there was no other such identification evidence.

14. I should note that in Riley WADC there is no finding, in so many words, of dishonesty or improper conduct by the police officer in question.  However, I consider there were findings by Davis DCJ which might be taken to go to the matter of the honesty and propriety of the police officer's conduct in relation to his evidence in the voir dire.

15. Davis DCJ was concerned to determine whether or not that police officer, Detective Bonner, had responded to the appellant off camera as both he and a fellow police officer, Detective Blanchard, whom he had contacted previously and provided with his account of his response, had testified to, during a 'second break' from the recording of the exchange with the appellant on 3 March 2009.  That testimony was to the effect Detective Bonner would not make a 'deal' with the appellant that, in return for the appellant's admissions the drugs were his, the appellant's partner would not be charged.  Davis DCJ determined there had in fact been such a response, after describing her findings as follows [50] - [53]:

    Detective Bonner suggested during cross examination at the hearing of this application that he was able to remember the exchange he had with the accused, claiming that he knew exactly what was happening at that particular time, that he knew the police were not to have conversations and his evidence about what he stated to the accused was exactly what the accused was told.  Neither of the Detectives made notes of what was discussed and, of course, it was not recorded on camera. None of the discussion with the accused during the second break, about which Detective Bonner and Detective Blanchard gave evidence on this application, appeared in their initial statements prepared for the purpose of the prosecution of these charges against the accused.  It was some months later in December 2009 and January 2010, after the accused challenged the admissibility of the admissions as recorded during the search, that these two detectives produced supplementary statements. 

    Detective Bonner contacted Detective Blanchard by phone to ask him to provide a supplementary statement.  I have considerable concern about this discussion between Detective Bonner and Detective Blanchard.  Detective Bonner did not just tell Detective Blanchard that a statement about what occurred during the second break was needed. Detective Bonner agreed that he told Detective Blanchard his (that is, Detective Bonner's) recollection of what was discussed during the second break, asked Detective Blanchard if he could recall this and then asked Detective Blanchard to provide a statement.  Detective Blanchard agreed that Detective Bonner related to him his version of events, saying 'Well, he'd have to, otherwise I wouldn't know what he was talking about', although he could not remember the exact conversation.  After this, Detective Blanchard prepared his supplementary statement. There is, as a result of this, a real issue as to the independence and reliability of each Detective's recollection of the discussion with the accused. 

    Taking into account all of these circumstances as I have outlined in [9] to [12], [15] and [35] to [51], on the balance of probabilities I find that the accused did not make the relevant admission because of a free choice to speak or be silent, but because he was induced to believe that if he admitted to possession of the drugs Ms Hunter would not be charged.  This belief arose from:

    1.Detective Bonner's initial suggestion that because the drugs were found at Ms Hunter's house, she was 'in line' to be charged;

    2.Detective Bonner's subsequent conduct during the second break and the statement he made on camera when the recording of the search recommenced.  The accused said words to the effect that he was prepared to take the blame for the drugs if the police did not charge Ms Hunter.  I find, based on the evidence and in particular what was both recorded and not recorded in the DVD recording, that Detective Bonner did not respond to the accused as he and Detective Blanchard said he did.  Detective Bonner conveyed to the accused that if he admitted to ownership of the drugs Ms Hunter would not be charged.  By then bringing the accused inside the house to recommence recording and not mentioning on camera the discussion outside, this induced the accused to believe that he had a 'deal'.

    I find on the balance of probabilities that in the circumstances as they existed, particularly the accused's concern and feelings of responsibility for putting Ms Hunter in the position as she was found during the search, the two matters I have identified affect the reliability of the relevant admission which the accused subsequently made.  I find that to be so even though Detective Bonner may not have consciously sought to overbear the accused's will, and the police may yet have still charged Ms Hunter with a drug related offence or offences arising from the search, (as she was, in fact, subsequently charged with destruction of evidence).

1. I consider that determination at the very least cast doubt on the honesty and propriety of Detective Bonner, thereby weakening the prosecution case to the extent Detective Bonner's evidence was important to that case.  However, where there was no express finding of dishonesty and impropriety the extent of the weakening of that case is less than had such a finding been made.

2. In any event, the significance for the present ground of appeal of a higher discount for the plea of guilty to the first drug offer offence of 2008 and the second drug offer offence of 2008 is much reduced by reason of the significance to the total effective sentence of imprisonment of the plea of guilty to the possession of money offence of 2008, which with the first drug offer offence of 2008 and the second drug offer offence of 2008 made the largest contribution to the total effective sentence.

3. Finally, as to the matter of delay otherwise, no authority was cited to me that it was relevant to the extent of the discount for a plea of guilty; as the authority on the point I quote from when I consider particular 2 on delay indicates, delay by itself is not a mitigating factor.  Further, the proposition that delay should be relevant to the extent of the discount for the plea of guilty does not commend itself to me.  Delay would not prevent at least a legally represented accused giving an indication a plea would be made to a different form of the charge and there is no indication in this case that the appellant was not legally represented at all material times.  Nor is it obvious to me in what other way delay might bear on making a plea of guilty or giving such an indication.  This is at least where delay has not culminated in a charge undergoing a transformation such that no earlier plea or indication of one could reasonably have been expected.  Here, in my view, there is no question of such a transformation, where the charges changed from sale to offer for sale.

4. I should add that counsel for the appellant did not contend the factors of delay and weakness of the prosecution case were applicable to the pleas of guilty to the charge of the unlicensed firearm offence of 2009, correctly in my view.  I cannot see how those factors could so apply.

5. Counsel for the appellant also did not contend before me that the appellant's pleas of guilty to the charges of the pocket knife offence of 2008, of the hunting style knife offence of 2008 and the baton offence of 2008, or his plea of guilty to the charge of the possession of money offence of 2008, should be treated as fast‑track pleas or their equivalent in the Magistrates Court.  In my view this concession was properly made, as none of those charges were amended, and all of the pleas were made at the point of the listed trial without any material before me to show any earlier indications such pleas would be made.  Nor was there any indication of delay in disclosure or any vulnerability of the prosecution case.  However, counsel put to me that a not insignificant discount for the plea in each case was warranted, because of the utilitarian value in avoiding a four day trial.  I accept this contention:  see Moody [38]. However, the discount would, as counsel for the appellant properly conceded, be significantly less than a plea on the fast-track system or its equivalent in the Magistrates Court would receive. The point is significant for totality purposes, as the sentence for the possession of money offence of 2008 with the concurrent sentences for the first drug offer offence of 2008 and the second drug offer offence of 2008 made, as I have indicated, the largest contribution to the total effective sentence.

6. As I indicated at the beginning of this section of my reasons, counsel for the appellant contended before me as indeed he did before the magistrate that there should have been different discounts for different pleas of guilty.  It will be evident from the foregoing that I agree.  However, as I will explain below, it is not apparent that the sentencing was inconsistent with that treatment.

7. Finally, I should note, as was common ground before me, that it was not an error for the magistrate to fail to quantify the discount or discounts afforded.  See Chivers v The State of Western Australia [2005] WASCA 97 [24] (Steytler P, McLure JA agreeing), [53] (Pullin JA). I would add that it is only necessary in a case other than a 'most exceptional' one (and it is common ground this is not such a case) it should be evident a reduction was made that was consistent with the exercise of a sound sentencing discretion. See Moody [35] (source of quotation) and [37] (above); Dohertyv The Queen (Unreported, WASCA, Library No 970518, 14 October 1997) 3, 14 (Franklyn J, Malcolm CJ & Steytler J agreeing); and Radebe [21].  It is not in contest that a reduction was made in this case.  This means that in an appeal on the totality ground like this one the Court should examine the sentence imposed to determine if it was so severe as not to bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety and having regard to all of the circumstances of the case, including those of the offender personally.  The circumstances of the case include here particularly the pleas of guilty.  That examination of the sentence requires at the least the further analysis of the particulars below.

Ground 1:  totality - particular 2, delay

1. Counsel for the appellant contended that the delay consisted in the 16 months that elapsed between the 2008 charges being laid (May 2008) until the completion of the disclosure by the prosecution in August 2009 by the witness statement of the police officer, to which I referred in the previous section of my reasons.  During that period there were about 20 mentions where the appellant sought disclosure and an unsuccessful application was made for dismissal of the charges for want of prosecution, during the disposition of which, I was told by counsel for the appellant without objection by counsel for the respondent, another magistrate had commented concerning the failure of the prosecution to make full disclosure.  It was common ground that none of this delay was attributable to the appellant.

2. I begin by noting that the reference in the submissions to the sentencing magistrate by counsel for the appellant to the comment by the other magistrate on the failure of disclosure by the prosecution does not, it seems to me, necessarily carry an assessment of the prosecution as neglectful or dilatory.  That reference was as follows (22 July 2010, ts 18):

   I have here a copy of the transcript of proceedings on 18 August wherein Magistrate Woods commented on the nondisclosure by the prosecution as at 18 August 2009.  That was an occasion where I both asked her to disqualify herself from the proceedings and asked her to order the dismissal of those proceedings for want of prosecution.  I quote:

   'They have addressed the matter.  Some of the charges have been changed.  Some of those have been dismissed and they are now getting the evidence which will be provided to you.  If it's not provided to you then they won't succeed on the prosecution.'

3. Counsel for the appellant laid emphasis on the 'guiding principles' for the approach to 'delay in the charging of an offender, or in the disposition of a pending prosecution against an offender' described in Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 [57] (Buss JA, Miller JA agreeing; see also McLure JA [16] ‑ [33]) (source of quotation), [57] ‑ [65]:

   The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender, will depend on all the circumstances of the particular case.  Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some guiding principles may be extracted from the preponderance of the authorities referred to by McLure JA.  Like her Honour, I put to one side those authorities in which issues of delay and totality intersect.

   First, delay is not, of itself, a mitigating factor.

   Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.

   Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.

   Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.

   Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.

   Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:

   (a)the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in 'uncertain suspense'; or

   (b)during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.

   Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.

   The guiding principles I have stated are not intended to be exhaustive or inflexible. 

4. In particular counsel for the appellant laid emphasis on principles 5 and 7.  As particular 3 raises the matter of rehabilitation, I will not consider the application of principle 5 here.

5. As to principle 7, it was not made clear to me what proportion of the delay was attributable to neglectful or dilatory conduct by the prosecution.  Counsel pressed on me that the delay in the obtaining of voice identification evidence was extraordinary and could not be justified by any operational considerations.  However, there was no suggestion that the police officer's involvement with the appellant should have occurred earlier than it did and I do not infer from the absence of a similar form of voice identification until then that the authorities acted neglectfully or unreasonably.  In any event, it is not clear to me that a delay of 16 months, or indeed of 27 months between the commission of the offences to which the appellant pleaded guilty among the 2008 charges and his sentencing, was of such an order that the response under principle 7 was called for in this case.  See Woodley v The State of Western Australia [2008] WASCA 92 [16] (McLure JA, Steytler P & Miller JA agreeing).

6. In my view, then, the matter of delay is not of significance in this appeal except as I indicate in relation to the next particular.

Ground 1:  totality - particular 3, the rehabilitative progress of the appellant

1. Counsel for the appellant laid emphasis on the evidence before the magistrate of efforts by the appellant to rehabilitate himself, particularly by development of his artistic endeavours and by addressing his health conditions, as well as evidence of efforts after sentencing which had led to his re-securing both his driver's licence and a heavy rigid vehicle driver's licence and securing employment in an automotive repair shop (the fresh evidence as to employment efforts).  The evidence before the magistrate took the form of letters of reference as to the appellant's conduct while in custody following the laying of the 2009 charges and after his release on bail on 21 April 2010.  While counsel accepted that the magistrate in her sentencing remarks acknowledged the artistic endeavours, he submitted she took the position that there was an absence of any real rehabilitation by the appellant, and she denied that the address of his health conditions had anything to do with rehabilitation.  The evidence of efforts after sentencing was in the form of a letter of reference from his de facto partner annexed to an affidavit of his counsel sworn 1 December 2010.

2. In sentencing for drug trafficking offences, general and personal deterrence are 'weighty considerations' and 'the weight to be given to personal matters such as a person's good antecedents and prospects of rehabilitation, are of reduced significance':  Ditri v The State of Western Australia [2006] WASCA 283 [9] (Wheeler JA, Roberts‑Smith & McLure JJA agreeing), referring to authority. It seems to me the sentencing magistrate had considerations of this kind in mind when she said the following (9 August 2009, ts 10):

   I accept without doubt that he has numerous medical conditions, but there is a community expectation that drug dealers be removed from the community and receive a period of imprisonment as a personal and as a general deterrence.

3. Further, the appellant had a significant criminal history of drug dealing, involving in 1994 amphetamine possession with intent (fined); in 1997 amphetamine possession with intent and amphetamine sold (18 months' imprisonment in each case); and in 2002 amphetamine possession with intent (2 years and 6 months' imprisonment cumulative on other sentences, and declared to be a drug trafficker).  He had committed the first drug offer offence of 2008 and the second drug offer offence of 2008 about 12 months after the end of his sentence for the 2002 offence and the other offences.

4. In sentencing an offender with a criminal record, Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477 ‑ 448 (Mason CJ, Brennan, Dawson & Toohey JJ) states:

   It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

5. It seems to me that, in conjunction with other circumstances, the sentencing magistrate took account of the appellant's criminal history in the first and third of the ways described in that quotation, as indicated by the following passages from her sentencing remarks (9 August 2010, ts 8 ‑ 9):

   Mr Riley does have a lengthy history of drug dealing, from 1994 through to 2002 and now 2010 for offences which occurred in 2008 and 2009.  The pre‑sentence report states that the report obtained in 2006 noted that Mr Riley was experiencing some form of personality disorder, most likely a narcissistic and antisocial personality disorder, and he has the potential to be a dangerous individual, and in relation to the offence in 2009 he was carrying a hand gun, which was a very dangerous weapon indeed, a .357 magnum.

   The possession of the weapons, coupled with the .357 magnum, which he had whilst he was on bail for previous drug dealing, shows and indicates that he was an organised and could be a vicious drug dealer.  The possession of a hand gun in itself is a very serious matter.  …

   …

   Mr Riley has commenced painting.  That is accepted, and I have numerous instances of that handed to me this morning, but I accepted it on the last occasion.  He commenced painting whilst in custody and it was submitted to me this morning that that was a form of rehabilitation.  It's certainly an occupation other than drug dealing, and it's certain something that I accept that Mr Riley has undertaken whilst in custody on the last occasion.  However, since being released from a finite term of imprisonment, within [sic] a 12‑month period he has now been convicted of offering to sell drugs again. …

6. In my view, the magistrate did not fail to take into account the appellant's rehabilitative progress as indicated on the materials as to his artwork before her.  I will deal separately with his health conditions below, under particular 4.  On those materials and the authorities on sentencing for drug trafficking and taking account of a relevant criminal history like the appellant's, it is not evident to me that that progress should be weighed significantly in sentencing deliberations in this case. 

7. Undoubtedly, however, the fresh evidence as to employment efforts meant that that progress should be weighed to some larger extent.  However, on those authorities it is not evident to me that there was as a consequence an increased chance of a lesser sentence (De La Espriella‑Velasco [157]). This conclusion needs to be revisited, however, after account is taken of the appellant's health conditions, under particular 4, and of a recent psychological report for the appellant, under particular 5.

Ground 1:  totality - particular 4, the appellant's health conditions

1. Counsel for the appellant directed my attention to the range of health conditions under which the appellant laboured at the time of sentencing, which were covered in medical reports before the sentencing magistrate and of which counsel had also reminded the magistrate.  Those conditions included a degenerative spine condition, diabetes, myelitis, hypertension, asthma, hepatitis C, fatty liver, profound obesity, chronic back pain and severe obstructive sleep apnoea.  Counsel's submission was that magistrate did not take account of all of the conditions, and did not treat the one condition she singled out for mention, obesity, as relevant to rehabilitation, when the effort to address that was put to her as a necessary part of the appellant's rehabilitative progress.

2. I begin by noting that, in my view, it is not evident the magistrate did not take account of all of the health conditions.  She used language to what I consider was that effect in a passage from her sentencing remarks already quoted, but which I repeat for convenience (9 August 2010, ts 10):

   I accept without doubt that he has numerous medical conditions, but there is a community expectation that drug dealers be removed from the community and receive a period of imprisonment as a personal and as a general deterrence.

   She also said this, earlier in those remarks (9 August 2010, ts 8):

   Mr Ash made lengthy submissions that Mr Riley has commenced the rehabilitative process since being released from custody on 21 April 2010.  These include his artwork and the numerous medical appointments that he has attended due to his medical conditions, and to stop that rehabilitation process would be a sentencing error.  I do not accept that someone with a medical condition who was attending appointments with respect to those medical conditions is undergoing rehabilitation.  Mr Riley has a medical condition, namely, obesity, which he wants to alleviate by having lap band surgery.  This is not a form of rehabilitation.

3. While the magistrate only specifically refers to obesity, I have read this last passage in the context of the submission put to her by counsel for the appellant, as follows (22 July 2010, ts 10):

   As your Honour has noted the other conditions relevant to Mr Riley, they are inter-related, the Hep C, the liver condition, the obstructed airways and difficulty in breathing.  The weight is the one issue which is going to assist him in resolving all other.  (emphasis added)

1. There are authorities from South Australia, the Northern Territory and New South Wales which have discussed the matter of when it is an error not to make allowance for time on bail in more detail.  I consider that the following from R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 [238] ‑ [243] (Tobias JA, James & Howie JJ) is, on the limited Western Australian authority I have referred to, guidance for my purposes:

   The only basis upon which it is asserted that the primary judge should have imposed a lesser sentence was that her Honour failed to take into account: the history of the appellant's conditional liberty pending the proceedings leading to his conviction on the third occasion; the uncertainty for the appellant caused by three trials; and the length of time since the commission of the offence. This criticism must be viewed in the light of the manner in which the sentencing proceedings were conducted before her Honour.

   During the course of her sentencing remarks, her Honour said:

   'Although counsel for the prisoner has noted that the prisoner has undergone the undoubted stress of three trials and has, whilst at liberty, endured and complied with relatively onerous bail conditions, including regular reporting, he has not argued that the sentence now to be imposed should be any less than the sentence selected by Dowd J, other than to take account of almost three years of that sentence served before the prisoner was released to bail.'

   Her Honour then stated that she did not believe that the appellant was entitled to any other reduction of the sentence imposed by Dowd J.

   The appellant relied upon the decision of this Court in R v Keyte (unreported, 16 March 1986) to support the submission that the sentence was excessive. In that case, conditional liberty by way of bail over a lengthy period was taken into account in determining the outcome of the appeal as representing a 'penal consequence' already suffered by the applicant before the Court. The appeal related to a sentence of 2 years imprisonment imposed for an offence of supplying a relatively small quantity of Indian hemp. The applicant was 29 years of age, without any previous convictions and had been on bail for three years leading up to the hearing of the appeal. Although the Court considered that some custodial sentence would have been called for at the time of sentence, it intervened to quash the sentence and imposed a bond and fine.

   In the present case, the appellant was first granted bail on 14 November 1990, approximately one month after his arrest for the murder. The conditions of bail required him to remain in Moree, unless he was attending conferences with his legal advisers, and to report to the police three times a day. On 18 November 1991, the reporting conditions were varied so that he was required to report to police twice daily. On 8 April 1993, the bail conditions were again varied, requiring him to report once a day. The appellant went into custody following his conviction before Newman J on 28 October 1993. After this conviction was quashed on appeal, he was again released on bail on 15 November 1995. It was a condition of his bail that he was to reside with his mother and to report to police twice a week. He was also required to surrender his passport. He was returned to custody on 4 June 1997, following his conviction before Dowd J. On 31 May 2000, he was again released on bail following the quashing of the conviction on appeal. It was a condition of that bail that he was to reside with his mother and report to police once a week.

   We accept that in an appropriate case the length and terms of an offender's period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence.

   There was here an obvious and significant disruption to the appellant's life and restrictions upon his liberty over a lengthy period as a result of the offence he committed. Dowd J, while accepting that this was a relevant matter, declined to reduce the sentence by reason of the period served on bail. The primary judge also appears to have accepted that it was a relevant matter, as was the uncertainty undoubtedly felt by the appellant during the period involving the three trials. But her Honour was not required to reduce the sentence because of these considerations. Clearly her Honour viewed the sentence imposed by Dowd J as the very least that the appellant should serve for the offence he committed. Experienced counsel, who appeared for the appellant, seems to have been of the same view. We are also of that opinion. There was no error in the sentence imposed on the appellant.

2. See also R v Delaney [2003] NSWCCA 342; (2003) 59 NSWLR 1 [14] ‑ [25] (James J, Santow JA agreeing; Barr J dissenting) (held, it was an error not to make allowance for time on bail where the accused voluntarily submitted to 6 1/2 months in a strict residential rehabilitation programme for treatment of drug, alcohol and gambling problems; the time in the programme was 'quasi‑custody'). I note too the other authorities, from South Australia and the Northern Territory, referred to in the useful article by Richard Edney, Bail conditions as a mitigating factor in sentencing (2007) 31 Crim LJ 101, to which counsel for the respondent in her supplementary submissions drew my attention.

3. On this body of Western Australian and the other authority referred to, I consider that it was not an error to fail to take into account the approximately four months spent on conditional liberty on the terms for the first two periods of liberty on conditional bail.  Nor, in my view, does the total of the three bail periods to date, about 8 1/2 months, on the terms I have described, mean that there is an increased chance of a lesser sentence (De La Espriella‑Velasco [157]). This is because in this case considerations of general deterrence assume significance (see Ditri [9]), the period of bail has not been an extended one and the conditions have not been shown to be of a relatively onerous kind. In particular, the conditions have not prevented the appellant undertaking the steps towards his rehabilitation I have described while not being directed to that end. I have previously described the account I consider should be taken of the rehabilitative progress the appellant made during the period which included the total of the three periods on bail.

4. I should add that counsel for the appellant also directed my attention to the 15 days spent in custody between the second and third bail periods, which would also represent fresh evidence for the purposes of the approach to circumstances arising after the sentencing.  In my view, that raises no issue in relation to ground 1.  That is because that period is service of any term of imprisonment in any event, and is too short to add to the time in custody between 3 March 2009 and 21 April 2010 in any significant way such that it might be said to justify a sentence of suspended imprisonment.  I return to suspended imprisonment below.

Ground 1:  totality - particular 7, matters occurring since sentencing

1. Counsel for the appellant drew my attention to the matters which I have called the fresh evidence as to employment efforts, the fresh evidence as to prospects for rehabilitation, the fresh evidence on health and rehabilitation and the fresh evidence as to bail.  I have dealt with each under the relevant particular or particulars above.  I do not consider any further treatment is called for.

Ground 1:  totality - in summary

1. In determining whether it has been shown that the magistrate failed to give proper effect to the totality principle it seems to me I should consider all of the matters I have described, and in particular the fresh evidence as to employment efforts, the fresh evidence as to prospects for rehabilitation and the fresh evidence on health and rehabilitation.  In doing so, in my view, I should also have regard to customary sentencing standards for the component offences, and their combination.  That is because, even if the fresh evidence meant there is an increased chance of a lesser sentence (De La Espriella‑Velasco [157]), this will not have the effect that a ground such as this one should be upheld, if the sentencing judge has not been shown not to have properly exercised their sentencing discretion in relation to totality, but rather it has only been shown that a different sentencing judge might well have imposed a lesser sentence: see Nguyen [4] ‑ [5].

2. The sentences that should be considered for the purposes of my determination are those that would have been imposed but for the full credit the magistrate allowed for the time in custody and allowing for the pleas of guilty I have referred to.  Those sentences for the offences that produced the total effective sentence the magistrate imposed appear on my calculations to be, for the first drug offer offence of 2008 and the second drug offer offence of 2008, 21 months in each case; for the possession of money offence of 2008, also 21 months; and for the unlicensed firearm offence of 2009, 10 1/2 months. 

3. Counsel for the appellant did not refer me to any authorities on customary sentencing standards for offences of those kinds.  Counsel for the respondent referred me only to authorities on drug trafficking offences (three:  Ditri; Moore v The State of Western Australia [2006] WASCA 121; and Smith v The State of Western Australia [2010] WASCA 150); and possession of an unlicensed firearm (two: Hiron v The Queen [2003] WASCA 310, where there were also three counts of possession of methylamphetamine with intent to sell or supply; and Stjepic v Christian [2005] WASC 193, which concerned a sentencing for the offence of possession in circumstances of aggravation).

4. That is a small sample in each case.  However, on those authorities, it does not appear to me that the individual sentences in this case or their combination, allowing for the pleas of guilty I have described and the forms of fresh evidence I have described, and in view of the nature of the offences, the appellant's criminal history and all of the other circumstances of the case as I have earlier described them, are excessive.  On that basis, it does not seem to me that it has been shown that the magistrate did not properly exercise her sentencing discretion in relation to totality.

5. I would not uphold ground 1.

Ground 2:  failure to consider imposing suspended sentence

1. Counsel for the appellant referred me to the magistrate's failure to refer to the possibility of a suspended term of imprisonment, either in terms or in other language which might possibly be seen to be to the same effect, such as referring to consideration of all sentencing options short of immediate imprisonment.

2. It was not in contest that the following describes how I ought to evaluate the magistrate's sentencing remarks, from Nevermann v The Queen (1989) 43 A Crim R 347, 350, which is language which has often been drawn upon, and recently in respect of a ground of appeal like this one (see Nguyen v Lassau [2010] WASC 240 [8] (Allanson J)):

   It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68 per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate.

3. I should note that counsel for the appellant had referred to the option of suspended imprisonment in his submissions to the magistrate:  see 22 July 2010, ts 15.  The magistrate in an exchange with counsel for the appellant had noted that prosecution counsel's submissions as to credit for time in custody had called for an 'immediate term of imprisonment because the offences call for that' (22 July 2010, ts 23).  In that context I consider the following passage indicates the magistrate had considered the option of suspended imprisonment (9 August 2010, ts 10):

   Having regard to the circumstances of this matter and taking into account the mitigating factor including an early plea of guilty, in my view the appropriate sentence is, and can only be, a period of imprisonment.  (emphasis added)

4. The court can in assessing whether a sentencing option was considered have regard to exchanges between a sentencing magistrate and counsel in relation to that option:  see Ditri [10].

5. However, I consider that the present ground on the appellant's written submissions subsumes not only whether any consideration was given to an option but also whether proper consideration was given to that option, including whether a miscarriage of justice was produced on all of the material, including fresh evidence properly before the court, by a failure to impose a suspended term of imprisonment.

6. The matter of the proper consideration of the sentencing option of suspended imprisonment is sufficiently addressed for my purposes in Samuel v The State of Western Australia [2004] WASCA 154 [34] ‑ [37] (Roberts‑Smith J, Malcolm CJ & Murray J agreeing), itself a case where a sentence of 2 years' immediate imprisonment for a single count of possession of 6.25 g of methylamphetamine with intent to sell or supply was set aside and a sentence of 2 years' imprisonment suspended for 2 years was imposed:

   As I understood it, counsel's submission here was rather that although the Sentencing Act does not require specific reference to the sentencing options, it does still require the sentencing Judge to give proper consideration to them.  That, I think, must be right.  It follows from a plain reading of the section.  The question then is whether in the particular case what appears reveals either that no consideration was given to a sentencing option lower in the hierarchy, or that inadequate consideration was given to it.  In some cases it will be readily apparent that an option is not realistically open and in those circumstances a sentencing Judge could not be criticised for not expressly referring to it.  In other cases, the circumstances may be such that two or more options may be realistically open and then it would usually be necessary for the sentencing Judge to make some reference to why the less severe option is not appropriate.

   The High Court has made it clear that it would be an error of law to conclude that a sentence of imprisonment is appropriate and only then consider whether it can be suspended.  The court held in Dinsdale v The Queen (2000) 175 ALR 315 that such an approach reverses the statutory process. Furthermore, the court in Dinsdale emphasised that it is wrong to reserve a suspended sentence only for those cases in which there is a prospect of rehabilitation or a need to show mercy to an offender; all of the circumstances must be considered, not only as going to the length of the term of imprisonment, but also as to whether or not suspended imprisonment is appropriate.

   Nor is a suspended sentence to be reserved for minor offences. Section 76 of the Sentencing Act expressly allows a sentence of up to 5 years imprisonment to be suspended.  It therefore necessarily contemplates that sentencing option may be used in an appropriate case even in respect of an offence of sufficient seriousness as to justify a term of imprisonment of up to 5 years.

   The point was made by Murray J in Minchinton (1998) 104 A Crim R 502 at 507, where his Honour reiterated what he had earlier said in R v GP (1997) 18 WAR 196, that:

   '… beyond the general statements of principle as to the circumstances in which it will be appropriate to suspend imprisonment, and having regard to the way in which the relevant provisions of the Sentencing Act are expressed, there is "no warrant for the conclusion that an additional element should be incorporated with respect to any given class or type of offence which would make the use of a suspended sentence a more exceptional, rare or unusual disposition than in respect of a different type of offence", given that the conditions warranting suspension are made out.  The Sentencing Act is constructed in such a way as to negate the view that in any particular class of case suspension of imprisonment will only be justified in exceptional circumstances.'

7. In determining whether proper consideration was given to a suspended term of imprisonment, the appeal court should consider whether the option was realistically open, and, if so, on what bases and whether there was a failure to mention those bases:  see Samuel [42].

8. On the material before the magistrate, it is not clear to me that the option of suspended imprisonment was realistically open.  The appellant's case was arguably not one involving the distribution of a significant amount of methylamphetamine or on a significant number of occasions:  see Ditri [10]. However, in my view, this case was one of a kind in which a sentence other than immediate imprisonment would be 'rare' as it would be in those other cases (see (Ditri [10], source of the quotation).  This is because, as the magistrate noted in her sentencing remarks, the appellant was a declared drug trafficker at the time of the offending; it might be seen that the bulk of the offences could be related to the supply of drugs being those the result of the 2008 charges, a submission put by counsel for the prosecution to the magistrate to which no exception was taken; the 2008 offences had been committed about 12 months after the completion of a sentence for offences including possession of amphetamine with intent; and the unlicensed firearm offence of 2009 had been committed while the appellant was on bail for the 2008 charges.

9. It does not seem to me that whether the option of suspended imprisonment was realistically open is to be assessed differently in a significant respect in the light of the fresh evidence as to employment efforts, the fresh evidence on health and rehabilitation and the fresh evidence as to prospects for rehabilitation. 

10. As Samuel [41] indicates, even in a case involving the distribution of a significant amount of methylamphetamine, suspended imprisonment may be realistically open. However, this case, even with the fresh evidence, is some substantial distance from Samuel as the following from that case indicates [40] ‑ [41]:

    Furthermore, it is apparent that his Honour perceived in the matters before him, a number of circumstances which in fact bore directly and cogently on the question whether a suspended sentence of imprisonment was appropriate, and should have been taken into consideration in that regard.  These included that the applicant was a 47 year old first offender who had an unblemished history of some 17 years in this country, he was a good family man, married with two sons, was a good worker, the quantity of the drug was not large, he was not a drug user and there was no apparent explanation for his commission of the offence - indeed, his Honour said he failed to understand why the applicant would have committed it.

    There was nothing to suggest the applicant was likely to commit any offence in the future.

1. True it is counsel for the appellant had put to the magistrate that the appellant had 'had enough' and set about 'reinventing himself' through his devotion 'exclusively' to his art and his health, while there had been 'no suggestion' he had come to 'police notice' or had breached his bail (22 July 2010, ts 22).  This submission, that the appellant had made an unprecedented change directed to his rehabilitation, undoubtedly gained significant support from the fresh evidence of the three kinds I have referred to.  It seems to me that it may be said that the option of suspended imprisonment might in a suitable case be realistically open even in a drug trafficking case where the offender does not have an unblemished record, on Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. However, in my view in this case, the three forms of fresh evidence considered with the matters of the appellant's criminal history and the circumstances of his offending are not sufficient to make it a realistic possibility that this is one of the rare cases in which a sentence other than immediate imprisonment would be open.

2. I would not uphold ground 2.

Conclusion

1. As will have in part been indicated by the length of these reasons, I consider leave should be granted to appeal on both of the two grounds as amended on the test in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA). However, I have not upheld either ground of appeal. It follows I would dismiss the appeal.

2. I will hear from the parties as to any other orders I should make.