Rossi v The State of Western Australia
[2014] WASCA 189
•21 OCTOBER 2014
ROSSI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 189
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 189 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:206/2013 | 12 AUGUST 2014 | |
| Coram: | McLURE P MAZZA JA HALL J | 21/10/14 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | PANGRASIO FRANCO ROSSI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Guilty plea Scope and application of s 9AA, Sentencing Act 1995 (WA) Whether discount manifestly inadequate First reasonable opportunity Tactical delay in plea Averaging of discounts Totality |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Criminal Procedure Act 2004 (WA), s 35, s 39, s 41, s 42, s 44 Misuse of Drugs Act 1981 (WA) Sentencing Act 1995 (WA), s 9AA Sentencing Amendment Act 2012 (WA) |
Case References: | Abraham v The State of Western Australia [2014] WASCA 151 Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465 Beins v The State of Western Australia [No 2] [2014] WASCA 54 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Forkin v The State of Western Australia [2013] WASCA 51 Gallop v The State of Western Australia [2007] WASCA 243 Hishmeh v The State of Western Australia [2012] WASCA 183 Luff v The State of Western Australia [2008] WASCA 89 Moody v French [2008] WASCA 67 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROSSI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 189 CORAM : McLURE P
- MAZZA JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 1181 of 2012, IND 790 of 2013
Catchwords:
Criminal law - Sentencing - Guilty plea - Scope and application of s 9AA, Sentencing Act 1995 (WA) - Whether discount manifestly inadequate - First reasonable opportunity - Tactical delay in plea - Averaging of discounts - Totality
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Procedure Act 2004 (WA), s 35, s 39, s 41, s 42, s 44
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA), s 9AA
Sentencing Amendment Act 2012 (WA)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Abigail Rogers Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151
Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Forkin v The State of Western Australia [2013] WASCA 51
Gallop v The State of Western Australia [2007] WASCA 243
Hishmeh v The State of Western Australia [2012] WASCA 183
Luff v The State of Western Australia [2008] WASCA 89
Moody v French [2008] WASCA 67
1 McLURE P: This is an appeal against sentence. The primary issues in the appeal concern the scope and application of s 9AA of the Sentencing Act 1995 (WA).
2 On 4 October 2013 the appellant was sentenced after having been convicted on his own pleas of guilty of 16 offences and of breaching a term of suspended imprisonment imposed on 22 November 2012. Eaton DCJ imposed a total effective sentence of 8 years' imprisonment. The individual convictions and sentences are as follows:
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3 The facts of the offending were read by counsel for the prosecution and incorporated into the sentencing judge's remarks, having been accepted by the appellant. A brief summary of the facts are as follows.
Indictment 1181 and associated offences
4 On 13 October 2011 police executed a Misuse of Drugs Act 1981 (WA) (MDA) search warrant at the appellant's home in Morley. The methylamphetamine the subject of count 1 on the indictment was located in a safe. Police also located $5,215 in cash, electronic scales, a quantity of cutting agent, a number of clipseal bags and a notepad recording the appellant's drug dealing activities.
5 The appellant was arrested and released on bail. He was on bail in relation to count 1 when he committed count 3.
6 On 16 February 2012 police executed a MDA search warrant in Dianella where the appellant was residing with his partner. The methylamphetamine the subject of count 3 was located in the master bedroom. Police also located $13,965 in cash, two smoking implements with traces of methylamphetamine, a small quantity of cannabis, one MDMA tablet, five small digital scales, quantities of small to medium plastic clipseal bags and a large quantity of rubber bands.
7 The appellant was remanded in custody between 16 February 2012 and 2 March 2012, when he successfully applied for bail.
Indictment 790 and associated offences
8 These offences were committed after the offences the subject of Indictment 1181 and whilst the appellant was on bail for those offences.
9 Between 17 October 2012 and 19 December 2012 police lawfully intercepted a mobile telecommunication service belonging to and used by the appellant. Counts 1 - 6 in Indictment 790 were established by the intercepted material. With the exception of count 3, the offences were of having offered to sell methylamphetamine. The statement of material facts provided to the appellant detailed the precise time and date on which each offence was committed.
10 Count 3 is for the sale of methylamphetamine. At about 7.00 pm on 16 November 2012, the appellant sold 6.98 g of methylamphetamine of 44% purity to Anthony Schwinkowski, who was stopped by police immediately after leaving the appellant's home.
11 On 20 December 2012, the appellant was arrested outside premises which he had attended, with a group of males, to recover money from a separate drug transaction. On the same day police again executed a MDA search warrant at the appellant's house and located a smoking utensil, a taser disguised as a torch. The appellant was found to have 0.5 g of methylamphetamine in his pocket.
12 On 25 July 2012, the appellant committed the offence of driving whilst disqualified/suspended for which a term of 8 months' imprisonment, suspended for 12 months, was imposed on 22 November 2012. The commission of the offences the subject of counts 5 and 6 in Indictment 790 and the associated s 32 notice was a breach of the suspended term of imprisonment.
13 The appellant was 38 years old at the time of sentencing. He had a lengthy history of prohibited drug abuse. At the time of sentencing, he had been in a de facto relationship with a woman for approximately two years. Six months earlier she had been diagnosed with systemic sclerosis and severe pulmonary arterial hypertension. As I read the expert evidence, less than 50% of patients with that diagnosis have a survival rate of three years.
14 At the time of sentencing, the appellant had a significant criminal history which included offences of assault occasioning bodily harm, possession of prohibited drugs and smoking utensils, stealing, numerous traffic offences, including no authority to drive, and breach of a suspended term of imprisonment.
Procedural history
Indictment 1181
15 The appellant was initially charged with three counts on Indictment 1181. Count 2 was for the offence of attempting to possess MDMA with intent to sell or supply.
16 The appellant was charged in the Perth Magistrates Court on 17 October 2011 with the matters that became counts 1 and 2 on Indictment 1181. He appeared in respect of those charges on 31 October 2011 and was remanded on bail.
17 On 17 February 2012, the appellant was charged in the Perth Magistrates Court with the offence which became count 3 in Indictment 1181. He was remanded in custody.
18 On 4 October 2012 the appellant entered pleas of not guilty to all three charges and was committed to the District Court for trial to appear on 18 January 2013.
19 On 15 January 2013 the State presented an indictment which comprised the three counts in Indictment 1181. The appellant was unrepresented at that hearing and the matter was adjourned to a trial listing hearing. Counsel who represented the appellant in the District Court (Mr JA O'Connor) began acting for the appellant in February 2013. The matter was listed for a directions hearing on 22 March 2013 and for trial on 20 May 2013.
20 On 22 March 2013 the appellant was arraigned on all three counts in Indictment 1181 and entered pleas of guilty to counts 1 and 3 and not guilty to count 2. The arraignment came about as a result of negotiations following the engagement of Mr O'Connor. The pleas offered to counts 1 and 2 were accepted by the State in full satisfaction of the indictment.
Indictment 790
21 On 11 February 2013 the appellant was charged in the Perth Magistrates Court with offences which became the subject of Indictment 790. At some stage after the provision of the prosecution brief to the appellant, and following negotiations, three charges of having offered to supply methylamphetamine were discontinued.
22 On 28 June 2013, at the fourth or fifth disclosure/committal hearing, the appellant entered pleas of guilty to the offences in Indictment 790. He was committed to appear in the District Court for sentence on 2 August 2013.
The sentencing judge's reasons
23 The sentencing judge found that the appellant was a significant operative in the commercial distribution of methylamphetamine in the community. He accepted that the offending, described as relentless, was driven by the appellant's drug addiction.
24 The sentencing judge concluded that the ill health of the appellant's partner did not have any significant impact on the sentencing process.
25 In relation to the appellant's pleas of guilty, the sentencing judge indicated he would reduce the head sentence imposed by him for each offence by one-half (12.5%) of the maximum allowed under s 9AA of the Sentencing Act.
Grounds of appeal
26 There are two grounds of appeal. They are first, that the sentencing judge erred in law by failing to give a sufficient discount pursuant to s 9AA of the SentencingAct for the appellant's pleas of guilty to the offences the subject of Indictment 790; and second, that the total sentence breached the totality principle. Leave to appeal was granted on ground 1. The application for leave on ground 2 was referred to the hearing of the appeal.
27 The appellant's counsel in the appeal reframed ground 1 to raise appealable errors in the sentencing for the offences the subject of Indictment 790. He submitted that (1) the discount for the offences was manifestly inadequate; (2) there was an error of principle in the application of s 9AA in that the same discount was applied to the counts in both indictments; and (3) there was an error of fact in failing to find that the pleas of guilty were entered at the first reasonable opportunity. I will deal with these matters in reverse order.
Ground 1 - first reasonable opportunity
28 The appellant claims that he entered his pleas of guilty to the 'offer to sell' charges at the first reasonable opportunity. He contends that on the facts in this case, the first reasonable opportunity was a reasonable time after the supply by the State of the covert listening product on which the charges were based, which information was necessary to enable the appellant's legal representative to advise in relation to the appellant's plea to the charges.
Atholwood and Cameron
29 The appellant's case relies on Cameron v The Queen (2002) 209 CLR 339 and Ipp J's judgment in Atholwoodv The Queen (1999) 109 A Crim R 465 in support of the submission that he pleaded guilty at the first reasonable opportunity. At that time, the concept of 'first reasonable opportunity' was not a statutory expression. However, the court's practice was to give a substantial discount within a nominated range if the guilty plea was entered at the first reasonable opportunity.
30 Ipp J said in Atholwood that:
Where the prosecution has charged an offender with several counts and after a process of negotiation the offender pleads guilty to only some of them and the prosecution withdraws the others, all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled. It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts with which he is charged to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity (467 - 468). (emphasis added)
31 Cameron is the leading case in this jurisdiction on the principles relating to pleas of guilty under the Sentencing Act prior to the amendments made by the Sentencing Amendment Act 2012 (WA) which inserted s 9AA.
32 Under the law as it stood when Cameron was decided, objective utilitarian considerations (such as reducing the costs of, and delays in, the administration of justice and sparing victims the ordeal of giving evidence) were not relevant considerations in assessing the weight to be given to a plea of guilty except to the extent that they supported an inference of relevant subjective considerations, including a willingness to facilitate the course of justice.
33 The facts in Cameron were that the appellant was charged with possessing ecstasy with intent to sell or supply. The material in the appellant's possession was subsequently analysed and correctly identified as methylamphetamine. Thereafter, the appellant advised the Director of Public Prosecutions that he intended to plead guilty to the charge, noting that it should be amended to reflect the drug actually in his possession. The High Court held that the appellant could not have been expected to plead guilty before the charge was amended to identify the substance he actually had in his possession.
34 The plurality in Cameron said:
The question whether it was possible for a person to plead at an earlier time is not one that is answered simply by looking at the charge sheet. As was acknowledged in Atholwood … by Ipp J … the question is when it would first have been reasonable for a plea to be entered [20].
35 The plurality then quoted Ipp J's statement set out above, with evident approval. However, Cameron was a case in which the accused would not have had personal knowledge of the true chemical composition of the drug in his possession and did not involve the discontinuance of other charges.
36 The respondent drew the court's attention to New South Wales cases in which Cameron has not been applied to that State's statutory framework, which differs from our statutory regimes, both former and current. It is unnecessary to discuss the NSW cases in detail.
37 We are no longer bound by the approval in Cameron of Ipp J's judgment in Atholwood, which approval was based on the High Court's position that objective utilitarian considerations were not directly relevant. Section 9AA has reversed that position. However, Atholwood cannot be distinguished on the same basis. Ipp J applied the pre-Cameron orthodoxy that both subjective and objective considerations were relevant.
38 The respondent challenges the correctness of Ipp J's remarks relating to the scenario where a plea of guilty to some charges is initially withheld for tactical reasons as part of a process of plea negotiation which results in other charges being discontinued.
39 Ipp J's judgment in Atholwood (which was not supported by the other members of the court) has been narrowly applied in subsequent decisions of this court: Gallop v The State of Western Australia [2007] WASCA 243; Luff v The State of Western Australia [2008] WASCA 89; Hishmeh v The State of Western Australia [2012] WASCA 183. Relevant forensic prejudice has been difficult to establish. Reliance on Atholwood would not have assisted the appellant in this case.
40 In supplementary written submissions, the appellant disavowed any suggestion that this was a case in which he delayed his pleas of guilty as a bargaining chip in plea negotiations. The appellant now goes no further than to say that the gravamen of what Ipp J said in Atholwood is that it should not be assumed, mechanically, that reasonably speaking he did not plead guilty at the earliest possible opportunity. Confined in that way, the proposition is unexceptionable.
41 Atholwood and Cameron were decided before the enactment of both s 9AA of the Sentencing Act and the Criminal Procedure Act 2004 (WA) (the CPA) which informs the meaning of the statutory expression 'first reasonable opportunity' in s 9AA. The focus in future must shift from the old case law to the new statutory framework.
CPA disclosure and appearance framework
42 The opportunities to plead guilty to a charge for an offence are governed by the CPA. I will confine attention to an indictable offence that is not an 'either way charge'.
43 Section 35 of the CPA imposes an obligation on a prosecutor to provide initial disclosure. Under s 35(4), when or as soon as practicable after a prosecution notice that contains one or more indictable charges is served on an accused, the prosecutor must serve the accused with a written statement of the material facts of each charge, an approved notice of the existence or non-existence of any confessional material that is relevant to each charge, a notice that the accused does or does not have a criminal record and any other prescribed document.
44 This material must be served before or at the time of the accused's first appearance in the court in relation to the prosecution notice unless it is impracticable (s 35(9)). If the material is not served, the court may adjourn the charge to a new court date that allows a reasonable time for the prosecutor to serve the material (s 35(10)).
45 As soon as practicable after service of the relevant notice, the prosecutor must make available to the accused a copy of the confessional material and any criminal record (s 35(11)).
46 When or as soon as practicable after an accused's first appearance in a court on an indictable charge, the court, before requiring the accused to plead to the charge, must, inter alia, be satisfied the accused has a copy of the prosecution notice and has had time to consider the notice and seek legal advice about it (s 39(a)), be satisfied that the accused understands the charge and the purpose of the proceedings (s 39(b)), cause the accused to be given an approved notice explaining the procedures under pt 3 of the CPA (s 39(c)) and, if the prosecutor has served the accused with the material referred to in s 35(4), proceed in accordance with s 41 (s 39(d) and (e)).
47 Under s 41(2) the court must tell the accused that he or she is not required to plead to the charge and give the accused the opportunity to plead to the charge.
48 If the accused pleads guilty to the charge, the court, without convicting the accused, must commit the accused for sentence to a superior court with jurisdiction to deal with the charge (s 41(3)).
49 If the accused enters any plea other than a plea of guilty or does not plead to the charge, the court must adjourn the charge to a disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with s 42 (s 41(4)).
50 Section 42 of the CPA requires full disclosure of any confessional material not already provided and any evidentiary material that is relevant to the charge.
51 At a disclosure/committal hearing pursuant to s 44 of the CPA, the court must, if satisfied that the prosecutor has complied with s 42, require the accused to plead to the charge. If not so satisfied, the court must adjourn the charge to another disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with s 42.
52 Thus, the first opportunity for an accused to plead guilty to a charge for an indictable offence is after s 39(a) - (c) of the CPA has been complied with. That is what is known as a 'fast-track' plea.
53 However, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion.
Section 9AA
54 Section 9AA of the Sentencing Act relevantly provides:
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
56 There is no statutory definition of the expression 'the first reasonable opportunity'.
57 The proper construction of s 9AA has been considered by this court on a number of occasions, including in Forkin v The State of Western Australia [2013] WASCA 51; Beins v The State of Western Australia [No 2] [2014] WASCA 54; and Abraham v The State of Western Australia [2014] WASCA 151. In Forkin this court held that the matters specified in s 9AA(2) exhaustively state the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty and if so, the extent of the discount. Remorse and other subjective considerations which informed the weight to be given to a plea of guilty under the former sentencing regime (as explained by the majority in Cameron) are no longer relevant considerations in determining what discount, if any, is to be given to a plea of guilty.
58 In Beins and Abraham this court held that the strength of the State case can be taken into account under s 9AA(2).
59 Both parties in this appeal accept that aggravating factors and poor antecedents are not relevant in the exercise of the discretion in s 9AA(2). I will assume that is correct for present purposes. However, it remains to be decided whether, and if so in what circumstances, a plea of guilty may not result in any, or any significant, discount. See Moody v French [2008] WASCA 67 [33] - [35].
60 The respondent raises a further issue of statutory construction. The respondent contends that the only relevant considerations informing the discretion to give a discount for a plea of guilty are the matters in subs (2) and (3) of s 9AA and that the sole purpose and effect of subs (4) is to set the upper limit of the discretionary range of the discount.
61 The respondent relies on textual differences between subs (2) and (3) on the one hand and subs (4) on the other. First, subs (3) is confined to when the plea was actually made and makes no reference to an indication that an offender would plead guilty. According to the respondent, that is consistent with the utilitarian focus of s 9AA because the State, victim and witnesses are still obliged, in a practical sense, to continue to prepare for trial in case the foreshadowed plea is not forthcoming. Second, the expression 'first reasonable opportunity' in subs (4) does not appear in subs (2) or (3). The respondent says that in addressing the question of how early in the proceedings the plea of guilty is made under s 9AA(3), regard can be had to whether the plea was made at the earliest possible point in the proceedings or the first reasonable opportunity.
62 Against that background, the respondent submits that even if it is accepted that the appellant pleaded at the first reasonable opportunity (which is denied), all it means is that the maximum discount is 25% and, applying subs (2) and (3), a sound exercise of discretion required a discount that was less than the statutory maximum because of the strength of the State case and the fact that the delay in making the plea to obtain a forensic advantage reduced the utilitarian value of the plea.
63 The respondent's construction of s 9AA does not correctly reflect its text, context and purpose. As to context, regard must be had to the relevant provisions of the CPA set out above.
64 Both subs (3) and (4) of s 9AA concern the timing of the plea of guilty. The timing of the plea self-evidently falls within the scope of the objective/utilitarian benefits which are broadly described in subs (2) as 'the benefits to the State, and to any victim of or witness to the offence'.
65 Subsection (4) of s 9AA has more than one purpose. Its primary purpose is to fix the upper limit of the discretionary discount range (the maximum discount). However, the condition that enlivens the power to grant the maximum discount also informs the approach to the exercise of the discretion in subs (2) and the proper construction of subs (3).
66 First, the condition that enlivens the power to grant the maximum discount recognises that the accused does not control the scheduling of court hearings at which it is possible to enter a plea. Accordingly, in the exercise of the discretion in subs (2), the court must take into account an indication by the accused that he or she would plead guilty. As the utilitarian matters in subs (2) provide the touchstone of relevance, the indication must be unequivocal, not provisional or conditional. That is, it must be an indication on which the State can reasonably rely to halt preparation of the case until the next hearing at which the court can take the plea. A failure to enter the plea on the first available opportunity thereafter is likely to be relevant in determining what if any weight is given to the accused's indication.
67 Second, it is clear from the choice of 'first reasonable opportunity' as the basis for enlivening the power in subs (4) to give the maximum discount, that subs (3) is not intended to be absolute. As the relevant provisions of the CPA demonstrate, it is not the State's intention to reward hasty or unreasonable pleas of guilty by the carrot of a higher discount for such a plea. Subsection (3) means, in effect, the earlier the plea is made from the starting point of the first reasonable opportunity to plead guilty.
68 The appellant makes a number of submissions on the relationship between s 9AA and the CPA, two of which can be accepted. They are first that often, but not in every case, the first reasonable opportunity for an accused person to plead guilty will be after the statutory requirements in s 35(4), (5), (6), (11) and (12), where applicable, have been satisfied. Second, that would not be the case if the reason for not pleading guilty at an earlier stage, and the related loss of relevant benefits under s 9AA, is due to the conduct of the State.
69 The appellant's third proposition is that the legislature has recognised in (relevantly) s 39 of the CPA that before an accused person enters a plea to an offence with which they have been charged they are entitled to know and understand the charge in the prosecution notice (notice), to have had time to consider the notice and to seek legal advice about it, and to be advised of the relevant procedures that may be invoked as a consequence of being charged. That is a fair summary of s 39 which addresses the subjective circumstances of the accused at the time of the hearing. However, the criterion of 'first reasonable opportunity' is objective. An accused cannot sit back and fail to take the necessary steps to put himself in a position to plead.
70 The appellant also contends that where an accused does not know that they are guilty of the offence charged because they do not know the facts that make up every element of the offence, it cannot be concluded mechanically, if the accused pleaded guilty at a later stage in the proceedings, that the plea was not entered at the first reasonable opportunity. This statement is too broad. It depends on what is meant by knowledge and the reason for the claimed lack of knowledge.
Did the appellant plead at first reasonable opportunity
71 The appellant claims it was reasonable for the appellant not to plead guilty before obtaining disclosure of the recorded telephone calls alleged to contain the offers the subject of the charges in Indictment 790 because the statement of material facts contained very little detail of the factual basis of the offences and only briefly summarised the effect of the telephone calls rather than set out what was actually said. Further the telephone calls relied on were amongst a number of telephone calls intercepted over the course of around two months.
72 The appellant also claims that it is irrelevant that the appellant may have been able to obtain copies of the recordings from police earlier in the proceedings, as police were not obliged to provide disclosure unless he elected to proceed to a committal hearing. I do not accept this submission. A failure to request access to the recordings is relevant, as is any failure to respond to, or refusal of, the request. There was no evidence that, prior to disclosure under the CPA, a request was made on behalf of the appellant of the investigating police or the DPP to listen to the records.
73 The appellant contends that this is not a case in which it can be concluded that disclosure of the recordings was sought to ascertain the strength of the prosecution case or that he held back pleading as a bargaining chip in plea negotiations
74 At his sentencing, the appellant bore the onus of establishing matters of mitigation on the balance of probabilities. He fell well short of establishing that he entered pleas of guilty to the charges in Indictment 790 at the earliest reasonable opportunity.
75 The written and oral submissions put on behalf of the appellant at sentencing did not state with any precision or clarity that the appellant's delay in pleading guilty was because he did not know the facts that made up the elements of the offences the subject of Indictment 790. Such a submission would have been met with bewilderment, the appellant having been the principal (and sole) offender who must have had actual knowledge of all the material (and other) facts of his offending. At its very highest, any issue could only be one of recollection of detail.
76 Based on all the material before the sentencing judge, the compelling inference is that disclosure of the recordings was sought before entering a plea to any of the charges in order to ascertain the strength of the prosecution case. The statement of material facts identified the precise time and date on which the appellant, personally, made the offers; all of the offers involved the appellant using a mobile telephone between one day and two months before the date of his arrest for the offences; as confirmed by his counsel in the appeal, the appellant couched his offers in code to minimise or avoid conviction; there was no evidence that the appellant sought or obtained his mobile telephone records or cross-checked any other records that may be expected of a person engaged in the commercial distribution of prohibited drugs (including his tick book); and any uncertainty in the recollection of detail is likely to relate to the effectiveness of the 'code' used to disguise what he knew, and intended the person on the other end of the line to know, was an offer to sell methylamphetamine. It is on the strength of the prosecution case that the appellant may have required legal advice.
77 The appellant pleaded guilty at the fourth or fifth disclosure/committal hearing. The sentencing judge did not err by failing to make a finding that the appellant's pleas of guilty to the charges in Indictment 790 were entered at the first reasonable opportunity. They were not.
Ground 1- alleged error of principle
78 The sentencing judge discounted the head sentence for the offences the subject of both indictments by 12.5%. The appellant says the discount for the offences the subject of Indictment 790 should have been significantly higher than the discount for the offences the subject of Indictment 1181. The appellant's case is that, on the facts, it was not open to apply the same discount for all the indictable offences.
79 On the subject of the discount, the sentencing judge said:
So far as your pleas of guilty to both indictments are concerned, I am prepared to reduce any sentence imposed by me by one-half of the maximum allowed under s 9AA of the Sentencing Act (ts 61).
80 I infer this statement was intended to comply with the obligation in s 9AA(5) of the Sentencing Act which provides that if a court reduces the head sentence for an offence under subs (2), the court must state that fact and the extent of the reduction in open court. That is an obligation that relates to individual offences. The consequences of this forced departure from the intuitive synthesis method of sentencing in relation to pleas of guilty have come home to roost in this case. Whereas previously there was only the exercise of a single discretion which focussed attention on the outcome (the individual sentence), there are now two separate discretions. As a result, the appellant has availed himself of the opportunity to challenge the discount for the guilty pleas as 'manifestly inadequate', an allegation of implied error. The well-known principles and approach to implied errors apply to this aspect of the appellant's challenge.
81 Although the application of s 9AA of the Sentencing Act to the separate indictments would have justified a higher discount for the offences in Indictment 790 than for the offences in Indictment 1181, the gap referable to the timing of the pleas would be reduced by the relative strengths of the State cases.
82 However, the terms in which the sentencing judge expressed the discount, when viewed against all relevant sentencing considerations, leaves open the possibility that the 12.5% involved an 'averaging' or 'swings and roundabouts' approach to the indictments. Certainly, the discount of 12.5% for the offences the subject of Indictment 1181 is towards the higher end of the discretionary range. However, it cannot be said that a discount of 12.5% for the offences the subject of Indictment 790 is at, or towards, the lower end of the discretionary range. There is certainly no foundation for the claim that the discount is manifestly inadequate. As the discounts for the offences in both indictments are within the discretionary range, I see no material error in any 'averaging' approach. Care must be taken to avoid elevating form over substance.
83 In any event, any difference in discounts should properly have been achieved by a smaller discount for the offences the subject of Indictment 1181. I am not persuaded that the 'bottom line' would have been to the appellant's advantage.
84 Even if the sentencing judge erred, I am not satisfied that different individual sentences should have been imposed for the offences the subject of Indictment 790. Accordingly, this court cannot allow the appeal on this ground: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
Totality
85 This ground of appeal does not have reasonable prospects of succeeding. Leave to appeal should be refused.
86 The appellant claims that the total effective sentence of 8 years' imprisonment offends the first limb of the totality principle, it being disproportionate to the criminality of the offending as a whole. There is also a suggestion in the appellant's written submissions that the total sentence was crushing and thus breached the second limb of the totality principle.
87 The appellant was found to be a commercial distributor of prohibited drugs. His offending was relentless. Despite twice being arrested, charged and bailed, he continued to engage in drug dealing. Some of the offending occurred while he was on a suspended term of imprisonment. His contempt for the law is demonstrated by this series of offending and his prior record. The need for personal deterrence was a very weighty sentencing consideration in this case. The only significant mitigating factor was the appellant's pleas of guilty. The sentencing judge was correct to conclude that any hardship to the appellant's partner should have no significant impact on the length of the sentence.
88 Having regard to all relevant sentencing factors and considerations, the total sentence imposed on the appellant is broadly consistent with the standards of sentencing for drug dealing offences in this jurisdiction.
89 The appellant's claim that the total sentence is 'crushing' reflects a lack of understanding of the second limb of the totality principle. There is no arguable foundation for a claim that the total sentence destroyed any reasonable prospect of a useful life after release.
90 MAZZA JA: I agree with McLure P.
91 HALL J: I agree with McLure P.
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