Rxa v The State of Western Australia
[2022] WASCA 116
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RXA -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 116
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 25 AUGUST 2022
DELIVERED : 6 SEPTEMBER 2022
FILE NO/S: CACR 40 of 2022
BETWEEN: RXA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAVRIANOU DCJ
File Number : IND XX of XXXX
Catchwords:
Criminal law - Appeal against sentence - Appellant pleaded guilty to 15 counts of various drug offences - Where letter of recognition in respect of assistance provided by the appellant to WA Police was in the course of being prepared but was not referred to before the sentencing judge - Whether absence of letter of recognition occasioned a miscarriage of justice
Legislation:
Nil
Result:
Application to adduce additional evidence granted
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | M A Perrella |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
A Child v The State of Western Australia [2007] WASCA 285
Apkarian v The State of Western Australia [2015] WASCA 67
Ditri v The State of Western Australia [2006] WASCA 283
Lovell v The State of Western Australia [2019] WASCA 169
Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349
MSO v The State of Western Australia [2015] WASCA 78
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
NHI v The State of Western Australia [2021] WASCA 32
SYL v The State of Western Australia [2021] WASCA 16
Wellstead v The State of Western Australia [2019] WASCA 130
JUDGMENT OF THE COURT:
Summary
The appellant pleaded guilty to 15 drug offences. In doing so, he disputed the pleaded aggravated circumstance as to the quantity of methylamphetamine on count 10, which was the most serious charge. The sentencing judge conducted a trial of issues, at the conclusion of which he reserved his decision and adjourned the sentencing hearing to 22 November 2021.
Thereafter, WA Police began preparing a letter of recognition in respect of assistance that had been provided by the appellant. That process was undertaken with a view to the letter being provided for the sentencing contemplated on 22 November 2021.
On 26 October 2021, the sentencing judge's associate emailed the parties, advising them that the sentencing judge would deliver judgment on the trial of issues on 28 October 2021 and that sentencing would proceed immediately thereafter.
WA Police were evidently not aware of the alteration in the date of the appellant's sentencing.
On 28 October 2021, the appellant was sentenced to a total effective sentence of 3 years 3 months' immediate imprisonment. The individual offences, and the sentence for each count, were as follows:
| Count | Description | Weight[1] | Maximum[2] | Sentence |
| 1 | On 19 October 2018, the appellant offered to sell or supply methylamphetamine to another | 0.2 g | 25 years' imprisonment and/or $100,000 fine | 3 months (cumulative) |
| 2 | On 20 October 2018, the appellant offered to sell or supply methylamphetamine to another | 0.2 g | 25 years' imprisonment and/or $100,000 fine | 3 months (concurrent) |
| 3 | On 21 October 2018, the appellant offered to sell or supply methylamphetamine to another | 0.5 g | 25 years' imprisonment and/or $100,000 fine | 3 months (concurrent) |
| 5 | On the same date and at the same place as count 3, the appellant attempted to possess methylamphetamine with intent to sell or supply to another | 1.75 g | 25 years' imprisonment and/or $100,000 fine | 3 months (concurrent) |
| 6 | On 22 October 2018, the appellant attempted to possess methylamphetamine with intent to sell or supply to another | 1.75 g | 25 years' imprisonment and/or $100,000 fine | 6 months (concurrent) |
| 7 | On 23 October 2018, the appellant offered to sell or supply methylamphetamine to another | 0.5 g | 25 years' imprisonment and/or $100,000 fine | 3 months (concurrent) |
| 8 | On the same date and at the same place as count 7, the appellant attempted to possess methylamphetamine with intent to sell or supply it to another | 1.75 g | 25 years' imprisonment and/or $100,000 fine | 6 months (cumulative) |
| 10 | Between 24 October 2018 and 27 October 2018, the appellant had possession of methylamphetamine with intent to sell or supply it to another | 27.2 g | 25 years' imprisonment and/or $100,000 fine | 2 years, 6 months (head sentence) |
| 12 | On 29 October 2018, the appellant offered to sell or supply methylamphetamine to another | 0.5 g | 25 years' imprisonment and/or $100,000 fine | 3 months (concurrent) |
| 13 | On 30 October 2018, the appellant offered to sell or supply cannabis to another | 2 ounces | 10 years' imprisonment and/or $20,000 fine | 3 months (concurrent) |
| 14 | On 7 November 2018, the appellant sold or supplied methylamphetamine to another | 0.21 g | 25 years' imprisonment and/or $100,000 fine | 3 months (concurrent) |
| 15 | On 8 November 2018, the appellant offered to sell or supply methylamphetamine to another | 0.5 g | 25 years' imprisonment and/or $100,000 fine | 4 months (concurrent) |
| 16 | On the same date and at the same place as count 15, the appellant offered to sell or supply cannabis to another | 1 g | 10 years' imprisonment and/or $20,000 fine | 3 months (concurrent) |
| 17 | On the same date and at the same place as in count 15, the appellant attempted to possess cannabis with intent to sell or supply it to another | 1 g | 10 years' imprisonment and/or $20,000 fine | 3 months (concurrent) |
| 18 | On 12 November 2018, the appellant attempted to possess methylamphetamine with intent to sell or supply it to another | 0.2 g | 25 years' imprisonment and/or $100,000 fine | 3 months (concurrent) |
| Total effective sentence | 3 years 3 months' imprisonment | |||
[1] ts 28 - 29.
[2] Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 6(1)(c), s 34(1)(aa), s 34(2).
At the time of sentencing, the Office of the Director of Public Prosecutions (ODPP) for Western Australia was not aware of the appellant's cooperation with the police or of the contemplated letter of recognition.
The letter of recognition was received by the ODPP on 25 November 2021. The following day, the Director of Public Prosecutions wrote to the appellant's counsel inviting counsel to contact the ODPP.
The appellant now appeals against his sentence on the ground that the absence of the contemplated letter of recognition occasioned a miscarriage of justice.
The respondent concedes the appeal and submits that the appellant should be resentenced to a lesser sentence on the material now before the court.
For the reasons that follow, we would accept the respondent's concession, uphold the appeal, set aside the sentences imposed by the sentencing judge and resentence the appellant in the manner set out in [43] ‑ [44] below, giving rise to a total effective sentence of 2 years 8 months' immediate imprisonment.
The facts and the appellant's personal circumstances
The facts and the appellant's personal circumstances are outlined in the confidential annexure to these reasons.
Sentencing remarks
The sentencing judge accepted that the appellant's 'life has changed' since the offending, which took place over three years prior to the sentencing hearing.[3] Nonetheless, the judge described the offending as 'serious'.
[3] ts 27.
The sentencing judge referred to the maximum penalties for each offence, being 25 years' imprisonment or a $100,000 fine or both for the offences relating to methylamphetamine, and in relation to the offences relating to cannabis, 10 years' imprisonment or a fine of $20,000 or both.
The judge categorised the appellant's activities as being of a low to mid-level dealer.[4]
[4] ts 30.
His Honour found that some of the drugs the appellant procured were for personal use, and some were for sale.[5] This included count 10, being the possession of 27.2 g of methylamphetamine with intent to sell or supply.[6]
[5] ts 30.
[6] ts 30.
The sentencing judge noted that the appellant's status as a drug user was not a mitigating factor.[7]
[7] ts 30.
The sentencing judge noted the sentencing outcome for the appellant's co‑offender. We will outline the co-offender's sentence later in these reasons.
While not mentioned by the sentencing judge, the State submitted to his Honour that there were 'far more mitigating factors' available to the co-offender, including his admissions to the police, his remorse and his engaging in drug and alcohol counselling.[8] Counsel for the appellant did not dispute those submissions.[9]
[8] ts 26.
[9] ts 26.
His Honour noted the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence, and personal circumstances are given less prominence given the legislative purpose of preventing or discouraging people from dealing in drugs.[10]
[10] ts 29 - 30.
The appellant received a discount of 17.5% for his plea of guilty. The sentencing judge noted that notwithstanding the plea was entered late, 'it still was of benefit'.[11]
[11] ts 29.
As to totality, his Honour observed that the offending occurred over a four‑week period and said that there were individual transactions involved in the offending, requiring some accumulation in the sentence.[12] The judge imposed a total effective sentence of 3 years 3 months' immediate imprisonment, backdated to commence on 12 October 2021.[13]
[12] ts 30.
[13] ts 31.
The sentencing of the co‑offender
Throughout the period of the offending the appellant communicated with his co-offender.[14] The co-offender was sentenced on 12 October 2020 by Gillan DCJ.[15] The co-offender pleaded guilty to counts 4, 9 and 11 on the indictment. Count 4 related to count 3 for the appellant, and count 11 related to count 10 for the appellant.
[14] ts 28.
[15] ts 28.
The co-offender was given a 20% discount for both his early guilty plea, as well as for the delay caused by COVID-19.[16] His sentences were as follows:
[16] Co-offender sentencing transcript, ts 7.
| Count | Description[17] | Weight[18] | Maximum | Sentence |
| 4 | On 21 October 2018, the co-offender attempted to possess methylamphetamine with intent to sell or supply it to another | 0.5 g | 25 years' imprisonment or $100,000 fine | 3 months (concurrent) |
| 9 | On 25 October 2018, the co-offender supplied methylamphetamine to another | 3.5 g | 25 years' imprisonment or $100,000 fine | 7 months (concurrent) |
| 11 | Between 24 October 2018 and 27 October 2018, the co-offender supplied methylamphetamine to another, and that offence involved a trafficable quantity | 28 g | Life imprisonment | 2 years 3 months (head sentence) |
| Total effective sentence | 2 years 3 months' imprisonment | |||
[17] WAB 32 - 33.
[18] Co-offender sentencing transcript, ts 2 - 3.
Ground of appeal
The appellant's sole ground of appeal contends, in substance, that a miscarriage of justice occurred as a result of the contemplated letter of recognition from the WA Police not being available to the sentencing judge when, had it been available, a shorter term of imprisonment would have been imposed.
Extension of time
The appellant requires an extension of time within which to appeal. The reasons for the delay are explained in the affidavits of the appellant's solicitor.[19] The extension is not opposed. In circumstances where, for reasons to be explained, the appellant has demonstrated a miscarriage of justice, we would grant the extension of time.
[19] WAB 5 ‑ 7, 10 - 11.
Disposition
The principles relating to the significance of cooperation with authorities to the fixing of an appropriate sentence are well established. They have been recently summarised in this court in SYL v The State of Western Australia.[20] For present purposes it is sufficient to note the following.
[20] SYL v The State of Western Australia [2021] WASCA 16 [17] - [18], [72] ‑ [83].
As Wheeler and McLure JJA noted in A Child v The State of Western Australia,[21] the allowance for discounts in sentencing an offender in circumstances of cooperation with law enforcement agencies reflects two underlying principles:
One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted [12].
[21] A Child v The State of Western Australia [2007] WASCA 285.
In Ma v The Queen,[22] Roberts-Smith J (Steytler J agreeing) reviewed numerous authorities on discounts for cooperation with law enforcement agencies. His Honour summarised the principles he had extracted from the authorities, as follows:
1.A substantial discount must be given to an offender who gives useful information or assistance to law enforcement or assistance to law enforcement authorities irrespective of whether that demonstrates remorse or contrition. That is because of the public policy consideration of encouraging criminals to do so.
2.Where the information or assistance does demonstrate genuine remorse or contrition the discount should be greater.
3.The information or assistance does not have to have been effective in the law enforcement process, although the discount will be greater where it has been.
4.The greater the disclosure and the more potentially useful it is to the authorities, in the comprehension of the offender, the greater should be the discount [118].
[22] Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349.
There is no standard percentage discount for an offender who cooperates. Rather, the discount depends upon all the circumstances of the individual case, including the nature and extent of the cooperation, as well as the nature and extent of the offending behaviour.[23]
[23] A Child [13]; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [8], [54], [56]; MSO v The State of Western Australia [2015] WASCA 78 [67]; NHI v The State of Western Australia [2021] WASCA 32 [49], [52].
There are limits on the available discount for cooperation arising from the need to impose a sentence commensurate with the seriousness of the offence in accordance with the dictates of s 6(1) of the Sentencing Act 1995 (WA).[24] As has recently been observed in this court:[25]
Where a separate discount is provided for a guilty plea there is less scope to provide a large reduction for assisting authorities. There is only 'limited room to discount a sentence without going below the bottom line' [SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 [6]] - that bottom line, in the present context, being a sentence that is commensurate with the seriousness of the offence. Thus the application of one discount for one purpose may impact on the extent to which another discount can be applied to achieve a different purpose [DGF v The Queen [2021] WASCA 4 [66]].
[24] MXP [52]; MSO [69]; SYL [81] ‑ [82].
[25] SYL [83].
The principles applicable to the entitlement of this court to intervene on the basis of material that was not before the sentencing judge were recently stated in Wellstead v The State of Western Australia.[26] The following summary is drawn from that statement of the principles.
[26] Wellstead v The State of Western Australia [2019] WASCA 130 [89] ‑ [99].
This court's power to intervene is not ordinarily enlivened in the absence of a material error of fact or law which can be detected in the reasons for sentence, or which can be inferred from an outcome which is unreasonable or plainly unjust. A sentencing judge cannot ordinarily be said to have erred by proceeding in a manner contrary to, or without having regard to, evidence or material which was not before the sentencing court.
However, even where no error is established, this court may intervene to avoid a miscarriage of justice from arising. A miscarriage of justice may arise from the absence of material before the primary court. The identification of any miscarriage must be undertaken consistently with the nature of an appeal.
The courts have recognised a distinction between matters which existed, but were not known at the time of sentencing and matters which have come into existence since the time of sentence. Ordinarily, but not universally, evidence will not be admitted of events which have occurred since the sentence was imposed.[27]
[27] Examples of cases where such evidence was admitted may be found in the cases referred to in [93] of Wellstead.
In the present case, while the letter of recognition did not exist at the time of sentencing, the appellant's assistance to the authorities had occurred by the time the appellant was sentenced. Applying the principles already referred to, that assistance was a significant mitigating factor that would have led to the imposition of a materially lesser sentence on the appellant. The appellant was not responsible for the absence of a letter of recognition being made available to the sentencing judge. In our view, the absence of the letter of recognition gave rise to a miscarriage of justice in the sentencing of the appellant.
For these reasons, we would uphold the appeal and resentence the appellant.
Resentencing
This court has all necessary material to enable it to resentence the appellant.
In doing so, we adopt what we have already said as to the circumstances of the offending, the appellant's personal circumstances and the judge's observations concerning the appellant's offending, none of which is in dispute.
Like the sentencing judge, we would apply a discount of 17.5%, pursuant to s 9AA of the Sentencing Act.
In addition to the appellant's other mitigating factors, primarily his steps towards mitigation in removing himself from the town where he was living and living a prosocial life in a different town following his arrest,[28] we would further discount the appellant's sentences to a not insignificant degree by reason of the matters referred to in the letter of recognition.
[28] See [56] in the confidential annexure.
In imposing sentences for counts 3 and 10, we take into account, in accordance with the parity principle, the sentences imposed on the co‑offender in respect of count 4 and count 11, respectively. In doing so, we note that the co-offender was sentenced on count 11 on the basis of the circumstance of aggravation of a trafficable quantity of methylamphetamine, so that the maximum penalty was life imprisonment. While there was no State appeal against the sentence imposed on the co-offender, on the face of things it must be said that his sentence of 2 years 3 months' imprisonment on count 11, for which the maximum penalty was life imprisonment, appears to be very lenient. This moderates the weight to be given to the co‑offender's sentence in application of the parity principle, although it does not render it irrelevant.
Some of the sentences imposed on the appellant, particularly his sentence on count 10, might themselves be said to be lenient.[29] Nonetheless, in the circumstances of this case, given the manner in which the miscarriage of justice in the appellant's sentencing occurred, the respondent did not oppose this court approaching the resentencing exercise by treating the sentences previously imposed on the appellant as a ceiling and applying an appropriate discount for his cooperation the subject of the letter of recognition.[30]
[29] As to the sentencing of active, small‑scale street dealers, see, for example, Ditri v The State of Western Australia [2006] WASCA 283, Apkarian v The State of Western Australia [2015] WASCA 67 and Lovell v The State of Western Australia [2019] WASCA 169.
[30] Appeal ts 4.
We would impose the following sentences of immediate imprisonment:
•Count 1: 2 months.
•Count 2: 2 months.
•Count 3: 2 months.
•Count 5: 2 months.
•Count 6: 5 months.
•Count 7: 2 months.
•Count 8: 5 months (cumulative).
•Count 10: 2 years (head sentence).
•Count 12: 2 months.
•Count 13: 2 months.
•Count 14: 2 months.
•Count 15: 3 months (cumulative).
•Count 16: 2 months.
•Count 17: 2 months.
•Count 18: 2 months.
We would make counts 8 and 15 cumulative on each other and on the sentence on count 10, with all other sentences to be served concurrently with count 10. Thus, the total effective sentence is 2 years 8 months' immediate imprisonment. The sentence should be backdated to commence on 12 October 2021. We would order that the appellant be eligible for parole.
Conclusion
For the above reasons, we would make orders to the following effect:
(1)An extension of time within which to appeal is granted.
(2)The appellant's application to adduce additional evidence in the appeal is granted.
(3)Leave to appeal is granted.
(4)The appeal is upheld.
(5)The sentences imposed by the sentencing judge on 28 October 2021 are set aside.
(6)The appellant is sentenced as set out in [43] ‑ [44] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BM
Associate to the Honourable Justice Beech
6 SEPTEMBER 2022
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