RIN v The State of Western Australia
[2015] WASCA 51
•17 MARCH 2015
RIN -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 51 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:55/2014 | 12 NOVEMBER 2014 | |
| Coram: | BUSS JA MAZZA JA HALL J | 17/03/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | CACR 55 of 2014 Leave to adduce additional evidence granted Extension of time to appeal refused Appeal dismissed CACR 82 of 2014 Leave to adduce additional evidence granted Extension of time to appeal refused Appeal dismissed | ||
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| PDF Version |
| Parties: | RIN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeals against sentence Appellant convicted on her pleas of guilty of multiple counts of selling prohibited drugs and possessing prohibited drugs with intent to sell or supply Cooperation with the authorities Whether inadequate information as to cooperation placed before the sentencing judges Whether one of the sentencing judges failed to take into account past assistance given by the appellant to the authorities Whether in any event different sentences should have been imposed |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c) |
Case References: | Ly v The State of Western Australia [2015] WASCA 18 MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RIN -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 51 CORAM : BUSS JA
- MAZZA JA
HALL J
- CACR 82 of 2014
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND X of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO CJDC
File No : IND Z of 2013
Catchwords:
Criminal law - Appeals against sentence - Appellant convicted on her pleas of guilty of multiple counts of selling prohibited drugs and possessing prohibited drugs with intent to sell or supply - Cooperation with the authorities - Whether inadequate information as to cooperation placed before the sentencing judges - Whether one of the sentencing judges failed to take into account past assistance given by the appellant to the authorities - Whether in any event different sentences should have been imposed
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c)
Result:
CACR 55 of 2014
Leave to adduce additional evidence granted
Extension of time to appeal refused
Appeal dismissed
CACR 82 of 2014
Leave to adduce additional evidence granted
Extension of time to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr J C Whalley
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ly v The State of Western Australia [2015] WASCA 18
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
1 BUSS JA: The appellant has applied for extensions of time to appeal against sentences imposed on her in the District Court for drug dealing offences.
2 By indictment IND X of 2012, the appellant was charged with three counts of selling methylamphetamine to another and one count of selling heroin to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act).
3 She was convicted of those offences on her pleas of guilty.
4 Count 1 related to 55.7 g of methylamphetamine with a purity of 49%. Count 2 related to 55.6 g of methylamphetamine with a purity of about 76%. Count 3 related to 116.6 g of methylamphetamine with an average purity of 73%. Count 4 related to 13 g of heroin with a purity of 65%. The drugs were sold on three separate dates, namely 9, 16 and 23 February 2012, to an undercover police officer.
5 On 8 February 2013, Goetze DCJ imposed sentence on the four counts, as follows:
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6 A parole eligibility order was made.
7 By indictment IND Z of 2013, the appellant was charged with two counts of possessing methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.
8 She was convicted of those offences on her pleas of guilty.
9 Count 1 related to 13.7 g of methylamphetamine with a purity of 83% and count 2 related to 55.5 g of methylamphetamine with a purity of 86.9%.
10 On 28 May 2013, Martino CJDC imposed sentence on the two counts, as follows:
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11 A parole eligibility order was made.
12 Appeal CACR 55 of 2014 is concerned with the sentences imposed by Goetze DCJ for the counts in IND X of 2012.
13 Appeal CACR 82 of 2014 is concerned with the sentences imposed by Martino CJDC for the counts in IND Z of 2013.
The applications for an extension of time
14 The last day for appealing against the sentences imposed by Goetze DCJ was 1 March 2013.
15 The last day for appealing against the sentences imposed by Martino CJDC was 18 June 2013.
16 The appellant did not file her appeal notices until 3 April 2014.
17 The applications for an extension of time are supported by the appellant's affidavit sworn 9 May 2014.
18 On 20 June 2014, Mazza JA referred the applications to the hearing of the appeals.
19 I will consider the merits of the grounds of appeal before deciding whether extensions of time should be granted.
The grounds of appeal
20 A common ground of appeal in each appeal alleges there was a miscarriage of justice at the sentencing hearing in that 'inadequate information was placed before the sentencing judge in relation to the appellant's cooperation with the authorities'.
21 At the hearing of the appeals, counsel for the appellant was granted leave to add a new ground of appeal in appeal CACR 55 of 2014. The new ground reads:
Alternatively, [Goetze DCJ] erred by failing to take into account, or by failing to properly take into account, the past assistance that the appellant had given to the authorities.
22 On 20 June 2014, Mazza JA referred the applications for leave to appeal to the hearing of the appeals.
The letters from the appellant annexed to defence counsel's written submissions for the purposes of the sentencing by Goetze DCJ
23 On 19 December 2012, defence counsel (who was not counsel for the appellant in the appeals) filed written submissions for the purposes of the sentencing by Goetze DCJ. Counsel annexed to the submissions, relevantly, a typewritten letter dated 1 April 2012, and a handwritten letter dated 10 June 2012, from the appellant. The typewritten letter had been translated and typed from a handwritten letter in a foreign language prepared by the appellant. The other letter annexed to the submissions was handwritten in English by the appellant.
24 The contents of the letters are referred to in schedule 1 to these reasons.
The application in each appeal for leave to adduce additional evidence
25 The appellant made application in each appeal for leave to adduce additional evidence. The additional evidence is contained in an affidavit sworn by the appellant on 12 June 2014.
26 On 28 July 2014, Mazza JA referred the applications to the hearing of the appeals.
27 Relevant details of the additional evidence are set out in schedule 2 to these reasons.
28 The State filed and served affidavits in response to the appellant's applications. Material parts of the State's evidence are set out in schedule 2.
29 At the hearing of the appeals, the appellant and one of the State's deponents, Detective First Class Constable Christopher Bell, were cross-examined on their affidavits. Relevant details of the oral evidence they gave are set out in schedule 2.
30 My findings of fact in relation to the additional evidence, including the oral evidence given at the hearing of the appeals, are set out in schedule 3 to these reasons.
The confidentiality of the schedules
31 The schedules to these reasons will be the subject of a confidentiality order. They will not be published except to the appellant and the State and their respective legal representatives.
The applicable principles and the proper approach in determining the nature, extent and value of an offender's past and promised future cooperation
32 The applicable principles, including the proper approach in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies and the appropriate level of any discount on his or her sentence, were examined in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149. It is unnecessary to reproduce that examination.
33 I merely note that the sentencing judge must determine the nature, extent and value of an offender's cooperation and, therefore, the appropriate discount to be given. The sentencing judge will be unable to make that determination if he or she does not have all the relevant information. Where a letter of recognition is not provided to the offender, the parties should endeavour to agree upon a statement of facts in relation to the cooperation.
The merits of the appeal from the sentencing decision of Goetze DCJ
34 On 20 December 2012, there was a sentencing hearing before Goetze DCJ. The appellant was represented by an experienced and competent defence counsel. At a later hearing, on 8 February 2013, his Honour imposed sentence.
35 During the hearing on 20 December 2012, Goetze DCJ stated that he had read defence counsel's written submissions, but his Honour adjourned briefly to enable him to read the letters dated 1 April 2012 and 10 June 2012 from the appellant that were annexed to the submissions (ts 50).
36 Defence counsel's written submissions focused on the appellant's role in the offending and the alleged coercive nature of her relationship with her husband. It was submitted that there was 'a willingness to give evidence against [her husband] and whilst this has not been taken up it does show some remorse for the situation she finds herself in'. The only submission made about information given by the appellant to the police was as follows:
In the early stages [the appellant] rang the police with the intention of not wanting to proceed with [her husband's] demands in respect of drugs however this was not followed through.
37 The appellant's letters dated 1 April 2012 and 10 June 2012 made assertions concerning:
(a) the nature of her relationship with her husband;
(b) her personal circumstances and antecedents;
(c) her claimed cooperation with the police;
(d) some of her offending; and
(e) her anger towards the police regarding the involvement of an undercover police officer in her offending.
38 Before his Honour adjourned briefly on 20 December 2012 to read the appellant's letters, the prosecutor mentioned to his Honour that in one of the letters the appellant spoke about 'her cooperation with police at some length' (ts 50). His Honour responded that 'there is this question then of her having called [Detective] Bell, the investigating officer' (ts 50). The following exchange then occurred between the prosecutor (Mr Grinceri), defence counsel (Mr Gunning) and his Honour:
GRINCERI, MR: [Detective Bell] did advise me that [the appellant] did give police some very vague intelligence which, at the end of the day, was nothing the police did not already know.
GOETZE DCJ: But the point is, I guess Mr Gunning will want to emphasise, she's a female in a relationship in which the male perhaps dominates her and gets her to do these things and that's his mitigatory point. She, to her credit, then contacts the police. Now, if the police don't follow through there's perhaps not much she can do about it.
GUNNING, MR: Your Honour, I don't see that this is of any great moment. She makes a phone call to the police - - -
GOETZE DCJ: Well, it's conceded by the State that she did, but that's my concern, and that - what reduces her culpability to a certain extent - - -
GUNNING, MR: Certainly, your Honour.
GOETZE DCJ: It's something I didn't know about, and something I need to - - -
GUNNING, MR: Yes (ts 51).
39 After further discussion between the prosecutor, defence counsel and Goetze DCJ, his Honour requested the prosecutor to contact Detective Bell for the purpose of confirming details of the appellant's telephone call to him (ts 52).
40 After a short adjournment, the prosecutor informed his Honour that:
(a) the prosecutor had spoken to Detective Bell;
(b) Detective Bell informed him that about a month before the first occasion when methylamphetamine was sold to the undercover police officer, the appellant telephoned 'Crime Stoppers' with 'some very vague information';
(c) the information did not relate to her husband, but to another man;
(d) the appellant only gave the officer at Crime Stoppers the first name of the man and did not provide an address (apart from the type of street) or any further details; and
(e) the appellant would not reveal her name or contact details to the officer at Crime Stoppers (ts 54).
41 The following exchange then occurred between the prosecutor, defence counsel and his Honour:
GOETZE DCJ: Well, how did they know it was her.
GRINCERI, MR: Police had - were listening to her telephone conversations already at that time, therefore, Officer Christopher Bell telephoned her back pretending to be from Crime Stoppers, however, when he was trying to get further information, [the appellant] refused to give any further information and eventually hung up.
GOETZE DCJ: Okay.
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GUNNING, MR: Your Honour, I think that essentially is what the situation was. I think it's covered in one of the letters and I think my client says that she was standing beside [her husband] at the time and couldn't speak but she didn't take it any further, so that's where we were (ts 54 - 55).
42 Next, defence counsel informed Goetze DCJ that the appellant wished to address his Honour personally on a matter (ts 55). His Honour agreed to this unusual course. The appellant told his Honour in substance about the alleged drug dealing activities of the brother of her co-offender and another man (ts 56 - 57). The prosecutor then informed his Honour that, on his understanding, the other man was the person to whom the appellant referred in her conversation with the officer at Crime Stoppers (ts 60).
43 His Honour requested the prosecutor to follow up the matter because his Honour had to endeavour to 'get to the bottom of the matter and make sure that I'm sentencing on the proper basis. Hopefully the police can come along and sort it out and Mr Grinceri can take some instructions' (ts 59).
44 The sentencing hearing was adjourned.
45 After the appellant was arraigned at the resumed hearing on 8 February 2013, Goetze DCJ told the prosecutor and defence counsel:
I understand that everyone's happy that I proceed to sentencing this morning, on the basis that [Mr X] is regarded as a courier and warehouseman for [the appellant's husband], and that [the appellant] was selling as representative of [her husband] at the least, and perhaps under some coercion from [her husband] (ts 66).
46 Defence counsel acknowledged that his Honour's understanding was correct (ts 66).
47 Goetze DCJ referred in his sentencing remarks to the facts and circumstances of the appellant's offending (ts 69 - 71).
48 His Honour recounted the appellant's personal circumstances and antecedents (ts 73 - 74). Also, his Honour noted that a pre-sentence report and a psychological report relating to the appellant said she deflected blame to others and there was an elevated risk of her reoffending (ts 74). The author of the psychological report made these observations:
[The appellant] is … currently awaiting sentencing for possessing and selling significant quantities of drugs. While she claims that these charges relate to three isolated occasions and that she typically does not offend in this manner, available information, her disclosures and her prior convictions for the same in 2009 indicate otherwise. Given her inconsistent disclosures it is difficult to ascertain what [the appellant's] motivation in offending is. However, she would appear to have enjoyed a valuable home and comfortable lifestyle without the need to work during her offence period and to have spent a significant amount of time and money gambling. While [the appellant] portrayed herself as oppressed, victimised, isolated and depressed, available information indicates that she is perhaps prone to some level of exaggeration. Numerous inconsistencies made by her across time and assessments also indicate a level of dishonesty and manipulation. As mentioned, despite claiming to have been abused and forced into offending by her husband on these three isolated occasions, their relationship appears to remain intact. This relationship would seem to be a prominent risk factor. A gambling addiction would also seem to be a risk factor. Collectively [the appellant's] questionable disclosures portray her as an unreliable and elusive character. As such certainty about her actual or most prominent criminogenic factors and needs are unclear. Motivation for program or counselling intervention was not strongly indicated while she refused supportive counselling and appears unable to demonstrate responsibility for her action or any appreciation of the impact on the community.
49 The appellant has a prior criminal record. Her previous convictions include two offences of possessing methylamphetamine with intent to sell or supply and two offences of possessing heroin with intent to sell or supply. The appellant was convicted of those offences on 24 November 2009. Conditional suspended imprisonment orders were made.
50 The appellant pleaded guilty to the current offences at an early stage, and Goetze DCJ allowed her a 25% discount on the individual sentences he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act 1995 (WA) (ts 74).
51 His Honour found that the appellant was involved in drug dealing for personal gain (ts 75). His Honour accepted that the appellant was 'acting under some pressure from [her husband]', but she was 'certainly actively involved in any event' (ts 75).
52 Goetze DCJ was willing to accept that the appellant's pleas of guilty demonstrated remorse and an acceptance of responsibility for her offending and, also, a willingness to facilitate the administration of justice (ts 76). His Honour then added, in reference to the telephone call the appellant made to Crime Stoppers:
I also understand that in the early stages of matters before your arrest or before you got in too deeply you did ring the police, but you didn’t provide them with any further information. And although you took that step you should have, no doubt, followed it through (ts 76).
53 His Honour said that he had read defence counsel's written submissions and he had read the transcript of defence counsel's oral submissions on 20 December 2012 (ts 78).
54 It appears that at some stage after the current offending the appellant separated from her husband. When the appellant gave oral evidence at the hearing before this court she referred to him as her former husband.
55 It is convenient to deal with the new ground of appeal, which was added at the hearing, before dealing with the original ground.
56 Counsel for the appellant clarified at the hearing of the appeal that the new ground alleged that Goetze DCJ erred by failing to take into account a consideration he was bound to take into account, namely the past assistance given by the appellant to the authorities. Counsel said it was not alleged that his Honour had made a weighting error (appeal ts 8).
57 At the sentencing hearing, defence counsel put before his Honour some information to the effect that the appellant had provided assistance to the authorities. The assistance is mentioned in the appellant's letters dated 1 April 2012 and 10 June 2012. However, defence counsel made only passing reference in his written submissions to the appellant's assistance.
58 As I have mentioned, his Honour adjourned briefly on 20 December 2012 to read the letters. The issue of the appellant's alleged assistance was then raised by his Honour with the prosecutor and defence counsel. The prosecutor told his Honour, without objection, that Detective Bell had informed him that the appellant had given the police 'some very vague intelligence' and 'nothing the police did not already know' (ts 51). Defence counsel did not contradict the prosecutor's statement. If defence counsel had contested the matter a trial of issues would have been necessary. It is apparent that defence counsel made a forensic decision not to pursue a case based on the appellant's alleged assistance. In the circumstances, that decision was objectively reasonable. If there had been a trial of issues it would have been necessary for the appellant to give evidence and be cross-examined. The cross-examination had the potential to undermine defence counsel's submissions that the appellant was remorseful for her offending and she had in effect been 'forced' to commit the offences because of the nature of her relationship with her husband.
59 Goetze DCJ referred in his sentencing remarks to the appellant's telephone call to Crime Stoppers but he did not otherwise mention the appellant's alleged assistance.
60 However, I am satisfied, for the following reasons, that his Honour did not make a material error of law or fact, as asserted in the new ground of appeal, by failing to take into account the appellant's alleged assistance. First, defence counsel did not object to, and did not contradict, the information given by the prosecutor to his Honour to the effect that the appellant had merely given the police 'some very vague intelligence' and 'nothing the police did not already know'. Secondly, his Honour had read the appellant's letters. Thirdly, defence counsel made an objectively reasonable forensic decision not to pursue a case based on the appellant's alleged assistance.
61 The new ground fails.
62 The original ground alleges that there was a miscarriage of justice at the sentencing hearing in that inadequate information was placed before Goetze DCJ in relation to the appellant's cooperation with the authorities.
63 For the reasons I give in schedule 3:
(a) I accept the evidence of Detective Bell and Detective Senior Constable Steven Britton in relation to the nature and extent of any cooperation (including information and assistance) given by the appellant to the authorities.
(b) I reject the appellant's evidence on this issue to the extent that it is inconsistent with the evidence of Detective Bell or Detective Britton.
(c) I am satisfied that at all material times the appellant had been told by police that she was not permitted to commit any offences and that at all material times the appellant knew and understood that she was not to commit any offences.
(d) I find that the information provided by the appellant to police was very vague; none of the information was specific and the police were unable to act on it; and none of the people mentioned by the appellant as having been involved in the drug trade were previously unknown to the police.
64 I am satisfied that no miscarriage of justice has occurred as alleged in the original ground. On my findings of fact in relation to the evidence adduced in the appeal, his Honour was not provided with materially inadequate information about the appellant's cooperation with the authorities. On my findings of fact, the nature and extent of any assistance or cooperation given by the appellant to the authorities (being the assistance or cooperation referred to in the evidence of Detective Bell and Detective Britton) was not of any significance for sentencing purposes.
65 In any event, even if, contrary to my opinion, any information or cooperation of significance for sentencing purposes (being the information or cooperation referred to in the evidence of Detective Bell and Detective Britton) was not placed before Goetze DCJ, no different sentences should have been imposed on the appellant. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA). The sentences imposed by his Honour were well within the range open on a proper exercise of the sentencing discretion. I have taken into account, in reaching this conclusion, the following:
(a) As to the individual sentences, the maximum sentence, the standards of sentencing customarily observed, the facts and circumstances of the offending, his Honour's findings of fact, the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of the kind in question, the appellant's personal circumstances and antecedents and all other relevant sentencing factors including matters of mitigation.
(b) As to the total effective sentence, whether the sentence of 5 years 8 months' imprisonment imposed on the appellant bears a proper relationship to the overall criminality involved in all of the offences she had committed, viewed in their entirety, and after having regard to his Honour's findings of fact and all other relevant circumstances and sentencing factors, including those circumstances referable to the appellant personally, and the total effective sentences imposed in comparable cases.
See, for example, in relation to comparable cases, the recent decision of this court in Ly v The State of Western Australia [2015] WASCA 18, which has some features comparable to the present case, and the decisions which are cited in Ly at [85].
The outcome of the appeal from the sentencing decision of Goetze DCJ
66 Neither of the grounds of appeal relied on by the appellant in her appeal from the sentencing decision of Goetze DCJ has a reasonable prospect of success. I would grant the appellant leave to adduce the additional evidence in the appeal, but the application for an extension of time to appeal must be dismissed.
The merits of the appeal from the sentencing decision of Martino CJDC
67 On 28 May 2013, there was a sentencing hearing before Martino CJDC. Once again the appellant was represented by Mr Gunning. After hearing submissions from the prosecutor and defence counsel, his Honour imposed sentence.
68 Prior to the sentencing hearing, defence counsel filed written submissions. The submissions said in relation to the appellant's alleged cooperation with the authorities:
Cooperation with police (drove around and pointed out drug related houses. No convictions as … a direct result and therefore no letter of comfort. A person was subsequently charged, however police maintained it was not as a result of [the appellant's] input).
69 Defence counsel annexed to the written submissions, amongst other things, the letters dated 1 April 2012 and 10 June 2012 from the appellant that were before Goetze DCJ.
70 At the sentencing hearing on 28 May 2013, the following exchange occurred between Martino CJDC, the prosecutor and defence counsel in relation to the issue of cooperation:
GUNNING MR: The situation is, in relation to this, that [the appellant] had agreed to cooperate with the police. She indicated that in committing these offences for which she's before the court, there was two compulsions which loomed largely with her. One was the fact that her [husband] was instrumental and directed her in relation to that.
She's prepared to cooperate in that respect and says that he was part of it and that may need to be taken into account in light of the State's comments, that they effectively reserve their right to charge him. That puts the defence in a situation where we say, 'Look, if that was the case then we should get a discount for any cooperation in that regard'. The - - -
MARTINO CJDC: Sorry, I'll just clarify that because I thought Mr Cogin said that there an appearance in a sentencing coming up for [the husband]. Is that what the position - - -
COGIN MR: [The husband] has pleaded guilty to some other offences, as I understand it. For the sake of certainty, I'm just asking that the drugs the subject of these charges be preserved until we hear what [the husband] has to say.
MARTINO CJDC: But this is not a case where there's an undertaking to assist authorities by giving evidence at a prosecution that I should give a discount for.
COGIN MR: No. There's nothing that I need to raise with your Honour in that regard.
GUNNING MR: Thank you, your Honour. I misunderstood that. I thought that [the husband] may [be] in the [firing] line in relation to these charges which [the appellant] is pleading to but I take it that's not the case and certainly [the husband] is coming up to be dealt with in relation to the charges for which [the appellant] is currently serving a term of imprisonment.
So that brings me back to the two points that she indicates that some of the motivating factors in relation to these charges was that she was directed by [the husband] in respect of picking up one of the amounts and that she was aware that the other amount was in the car, and the second factor was that she was trying to also get information to assist herself in respect of the charges for which she's currently serving the term of imprisonment for.
In other words, trying to get information that she could assist the police further. Clearly, that was misfounded. Clearly the police say, 'Well, we're not aware of that' and therefore - and wouldn't have accepted that that was the position. They're the - -
MARTINO CJDC: Well, I just have difficulty with the proposition that [the appellant's] committing the offending for which I am to sentence her thinking that this was going to assist the police. I mean when the police arrived, she ran away and threw the drugs into the bushes.
GUNNING MR: Look, I don't doubt that but what she says is that by doing that and doing also what [the husband] was directing her to do, she would then be in a further position to see who was further up the line and if that was the case then she would be able to assist the police and give them more concrete information on which they may be able to act on and eventually she would get a letter from them but that didn't eventuate.
And certainly there's nothing that occurred from that. You'll see that there was cooperation with the police in that when she was picked upon the 29th, there was - she was taken and driven around and she pointed out some houses which related to drug activity, although you'll see that there was the position that the police or the State DPP also take, is that there was no direct arrests or convictions as a result of that, and therefore no letter of comfort.
But I just indicated that so that your Honour is aware that there certainly was cooperation to that extent. They're the matters that I wish to put before the court, unless your Honour has any further questions? (ts 12 - 14).
71 His Honour noted in his sentencing remarks that the appellant had committed the offences in question while she was on bail for other serious drug offences. He added:
You have submitted to me through your lawyer that you were hoping to obtain information for police.
Well, it's certainly the case that you were not acting with authority of police. You knew that; you ran away when - or walked away and threw [the] drugs away when you saw that the police were present. And I do not accept that you were acting with a view to gaining information for police (ts 18).
72 Later in his sentencing remarks, Martino CJDC said:
You did provide some cooperation to the police. It did not result in a significant benefit to investigations, but you were prepared to provide what information you were - you had available to provide to the police and you did so. And you are disappointed that you've not got greater credit for that, but that's the position. Your assistance was not of great assistance in practical terms to investigations (ts 19).
73 I am satisfied that no miscarriage of justice has occurred as alleged in the ground of appeal. On my findings of fact in relation to the evidence adduced in the appeal, his Honour was not provided with materially inadequate information about the appellant's cooperation with the authorities. On my findings of fact, the nature of any assistance or cooperation given by the appellant to the authorities (being the assistance or cooperation referred to in the evidence of Detective Bell and Detective Britton) was not of any significance for sentencing purposes.
74 In any event, even if, contrary to my opinion, any information or cooperation of significance for sentencing purposes (being the information or cooperation referred to in the evidence of Detective Bell and Detective Britton) was not placed before Martino CJDC, no different sentences should have been imposed on the appellant. The sentences she received were well within the range open to his Honour on a proper exercise of the sentencing discretion. I have taken into account, in reaching this conclusion, the following:
(a) As to the individual sentences, the maximum sentence, the standards of sentencing customarily observed, the facts and circumstances of the offending, his Honour's findings of fact, the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of the kind in question, the appellant's personal circumstances and antecedents and all other relevant sentencing factors including matters of mitigation.
(b) As to the total effective sentence, whether the sentence of 7 years' imprisonment imposed on the appellant bears a proper relationship to the overall criminality involved in all of the offences she has committed (including those for which she was sentenced by Goetze DCJ), viewed in their entirety, and after having regard to the findings of fact made by Martino CJDC and Goetze DCJ and all other relevant circumstances and sentencing factors, including those circumstances referable to the appellant personally, and the total effective sentences imposed in comparable cases.
The outcome of the appeal from the sentencing decision of Martino CJDC
75 The ground of appeal relied on by the appellant in her appeal from the sentencing decision of Martino CJDC does not have a reasonable prospect of success. I would grant the appellant leave to adduce the additional evidence in the appeal, but the application for an extension of time to appeal must be dismissed.
76 MAZZA JA: I agree with Buss JA.
77 HALL J: I agree with Buss JA.
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