Savory v The State of Western Australia
[2018] WASCA 165
•21 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SAVORY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 165
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 16 AUGUST 2018
DELIVERED : 16 AUGUST 2018
PUBLISHED : 21 SEPTEMBER 2018
FILE NO/S: CACR 94 of 2018
BETWEEN: JAMES TERRANCE SAVORY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND KUN 52 of 2017
Catchwords:
Offence of attempting to possess cannabis with intent to sell or supply - Sentence of 20 months' immediate imprisonment - Whether judge erred in determining the discount for the plea of guilty - Whether error of fact - Whether different sentence should have been imposed
Legislation:
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused on ground 1 and granted on grounds 2 and 3
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
AJ v The State of Western Australia [2016] WASCA 13
Atkinson v The State of Western Australia [2017] WASCA 154
Brown v The Queen (Unreported, WACCA, Library No 6028, 3 October 1985)
DL v The Queen [2018] HCA 32
Jones v The State of Western Australia [2018] WASCA 105
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380
Lam v Beesley (1992) 7 WAR 88
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476
Ugle v The State of Western Australia [2018] WASCA 97
REASONS OF THE COURT:
Introduction
The appellant was convicted, on his plea of guilty, of one count of attempting to possess cannabis with intent to sell or supply. He appeals against the sentence of 20 months' immediate imprisonment imposed for that offence.
Essentially, the appellant's grounds of appeal make two complaints. First, ground 1 asserts that the sentencing judge made an express error of fact. Secondly, grounds 2 and 3 complain of the manner in which the sentencing judge approached the determination of the discount for the appellant's plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).
On 16 August 2018, following the hearing of the appeal, the court made orders as follows:
1.Leave to appeal on ground 1 is refused.
2.Leave to appeal on grounds 2 and 3 is granted.
3.The appeal is dismissed.
The court indicated that it would publish reasons at a later date. These are our reasons. In essence, we dismissed the appeal because, even if one (or more) ground of appeal were to succeed, we were satisfied that a different sentence should not have been imposed.[1]
[1] Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)(a).
The facts
The facts were not in dispute.[2]
[2] White AB 43.
On 21 June 2017, police were called to the Australia Post office in Kununurra. They examined a package addressed to the appellant. The package contained 1,348 g of cannabis.
The police replaced the cannabis with an inert substance. Following that, the package was placed in the appellant's post office box.
At around 2.30 pm that afternoon, the appellant collected the package. When he left the post office he was arrested by police officers.[3]
[3] White AB 42, 75 ‑ 76.
When interviewed by the police after his arrest, the appellant admitted that when he collected the package he believed it contained a large quantity of cannabis.[4] Initially, the appellant said he allowed his post office box to be used by another person in order to clear a drug debt.[5] Subsequently, he resiled from that position, stating that he was to be rewarded with alcohol, saying that he was addicted to alcohol.[6]
[4] White AB 76.
[5] White AB 76.
[6] White AB 76.
Sentencing hearings
The appellant came before the court at three hearings relating to his sentencing. The first hearing was adjourned to allow for pre‑sentence and psychological reports to be prepared. At the second hearing, on 4 May 2018, submissions were made. At the third hearing, on 11 May 2018, the judge imposed sentence and delivered his sentencing remarks.
In an exchange with counsel at the second hearing as to whether the appellant was to have a drug debt cleared or to be rewarded in some other way for his actions, the judge said:[7]
Yes. I must confess, the - given the extent to which there has been - he has two prior convictions of a similar nature and I think admits having done it previously in the same way (indistinct) post office box be used in the past in one of the reports, I view it with some scepticism.
[7] White AB 55.
Later at the second hearing, again in an exchange with counsel for the appellant, the judge said:[8]
But, Ms Ross, your submission that he's not involved in the sale and distribution of drugs does not sit well with his admission that on at least two occasions he has facilitated the importation by post of a quantity of cannabis into Kununurra to - which he must know was going to be distributed amongst the residents and population in that region for commercial gain by others in circumstances where he is assisting that occurring.
[8] White AB 60.
In the course of the hearing on 4 May 2018, counsel for the appellant invited the judge to apply the maximum reduction in sentence pursuant to s 9AA of the Sentencing Act. Counsel said as follows:[9]
I believe [the plea of guilty] was on the fast‑track system and my application there is that it is open to your Honour to consider applying the maximum reduction in sentence.
[9] White AB 66.
At that point, the judge summarised what he perceived as the main points that had been made by counsel for the appellant. His Honour then inquired whether there was anything further counsel wished to say, to which counsel replied in the negative.[10]
[10] White AB 66.
It may be seen, therefore, that counsel submitted that it was 'open' to the court to 'consider' applying the maximum reduction, and did not make any further points in support of that general invitation.
In the course of the prosecutor's submissions on sentence, he stated:[11]
[T]he State accepts this was a plea at the earliest reasonable opportunity. The sentence is a fast‑track plea. And the State has no difficulty in the maximum possible sentence being provided'.
[11] White AB 69.
Shortly thereafter, the prosecutor said: [12]
[A]lthough, as the State has said, the offender is entitled to full credit for his early plea, in assessing the extent that he was remorseful and assessing the extent to which he is now cooperative, it can't be said that he made full voluntary disclosures to police, given it was a situation where he was found red‑handed'.
[12] White AB 70.
Sentencing remarks
The judge noted that the appellant had explained that in 2013 he agreed to possess drugs in exchange for alcohol, which resulted in his conviction for being in possession of cannabis with intent to sell or supply.[13] His Honour noted that counselling had been suggested as a treatment option for the appellant's alcoholism. Factors relevant to his offending included a degree of having an antisocial attitude, antisocial associates, a history of substance abuse and an attitude supportive of cannabis use.[14] His Honour stated that 'alcohol seems to be a significant feature in [the appellant's] offending' and that: [15]
Your attitude towards the use of cannabis … runs contrary to the law.
Your previous behaviour as reflected in your criminal history indicates a persistent defiance and disregard for the law, both in respect of drugs and traffic matters. You are certainly not entitled to any leniency for good character.
[13] White AB 77.
[14] White AB 77.
[15] White AB 78.
The appellant was on bail for other drug related offences when he committed this offence.[16]
[16] White AB 78.
The appellant's criminal record included nine convictions for simple possession of drugs. His Honour commented that it was 'somewhat surprising' that the appellant only received fines for his previous two convictions of possession of cannabis with intent to sell or supply, given his antecedents and history of reoffending.[17] With respect to the previous penalties imposed on the appellant, his Honour said:[18]
The issue of personal deterrence should have been considered with your second offence in July 2013. A fine of $1,000 can hardly be seen as a punishment that would cause you to change your behaviour.
[17] White AB 78.
[18] White AB 78.
The judge noted that the appellant had accrued about $10,000 in unpaid fines, which were only cleared because they were cut out while the appellant served a period on remand pending sentence.[19] The appellant nonetheless continued to buy drugs and his previous offending underscored the relevance of personal deterrence as a sentencing factor.[20]
[19] White AB 78 ‑ 79.
[20] White AB 78.
The sentencing judge noted that the appellant had pleaded guilty on the fast‑track system.[21] However, his Honour said that the extent of the appellant's cooperation was tempered by the fact that the explanation he initially provided to police was somewhat inconsistent with the explanation he offered to the court as to how he was to receive payment.[22]
[21] White AB 79.
[22] White AB 79.
The judge observed that the appellant's plea of guilty was an indication of an acceptance of responsibility, perhaps remorse and a willingness to facilitate the course of justice.[23] The judge stated that he would reduce the head sentence pursuant to s 9AA of the Sentencing Act by 15%.[24]
[23] White AB 79.
[24] White AB 79.
The judge said that he did this in the context where the State case was 'significantly strong' and the appellant was 'in essence caught red‑handed'.[25]
[25] White AB 79.
Unfortunately the transcript and audio recording were unable to record a portion of the judge's remarks relevant to the judge’s findings about the appellant’s plea of guilty. The transcript records the judge saying: '[it] didn’t come before the court at the (inaudible) on the first available date as I understand it'.[26] Having listened to the available audio recording, it is not possible to determine precisely what his Honour said. It appears that a portion, of unknown length, is indecipherable.
[26] White AB 79.
The judge said that he was mindful of the need for specific personal deterrence:[27]
[I]n circumstances where this is the third occasion where you have been convicted of such an offence. And you seem to have a relaxed attitude to the use of cannabis and the cannabis being distributed within the community and … supplied to others for distribution, and you facilitating that by allowing them to use your post office box.
[27] White AB 81.
The judge observed that general and personal deterrence must be accorded the greatest weight when the court is sentencing drug offenders.[28]
[28] White AB 81.
The judge concluded that the appropriate sentence was a term of 20 months' immediate imprisonment.[29] There is no challenge on appeal to the judge's conclusion that the seriousness of the offence, in its circumstances, meant that the term of imprisonment must be immediately served.
[29] White AB 81 ‑ 82.
The judge backdated the sentence to commence on 19 February 2018 when the appellant first went into custody. The appellant was made eligible for parole.
Personal circumstances
The appellant was 43 years of age at the time of sentence and had what the judge described as a 'fairly significant drug history'.[30] The appellant's criminal record reveals a history of relatively minor traffic, breach of bail and drug offences, including two previous offences for possession of cannabis with intent to sell or supply, for which he received a fine (of no more than $1,000).
[30] White AB 76.
The appellant had previously worked doing odd jobs but had been unemployed for the last five years. He was financially supported by his daughter during that time.[31]
[31] White AB 76.
The appellant's childhood was marked by transience and his father's excessive alcohol use. The author of the psychological report noted that following his parents' separation when he was aged about 13, the appellant chose to reside with his father, which exposed him further to his father's excessive drinking. His Honour noted that the appellant and his ex-partner relocated from Western Australia in an attempt to get away from their heroin habit.[32] The appellant's son now lives with his mother while the appellant lives with his daughter, who has been a great source of support for him. The judge below noted that the appellant's incarceration had meant that he had not consumed alcohol and that he expressed both a confidence and a desire to return to work upon release.[33]
[32] White AB 77.
[33] White AB 77.
Grounds of appeal
The appellant appeals on three grounds, namely:
1.The learned sentencing Judge erred in fact in concluding that the appellant had admitted that on at least two occasions he had facilitated the importation by post of a quantity of cannabis into Kununurra;
2.The learned sentencing Judge erred in determining that the appellant's plea of guilty was not entered at the first reasonable opportunity; and
3.The learned sentencing Judge erred in law in denying the appellant procedural fairness.
Ground 1: disposition
Ground 1 asserts that the sentencing judge erred in fact in concluding that the appellant had admitted that, on at least two occasions, he had facilitated the importation by post of a quantity of cannabis into Kununurra.
The terms of the ground, and the written submissions in support of it, focus on the statements made by the judge in the course of the exchanges with counsel on 4 May 2018 set out at [11] and [12] above.
Statements made by a judge in the course of an exchange with counsel during sentencing submissions do not have the status of a finding of fact. Judges may ask questions, or state tentative propositions, in order to test the submissions that have been made. A misunderstanding may be corrected or resiled from on reflection. It is generally wrong to draw conclusions about findings made by a sentencing judge based on questions or provisional views expressed during submissions.[34]
[34] AJ v The State of Western Australia [2016] WASCA 13 [37]; Atkinson v The State of Western Australia [2017] WASCA 154 [48].
Those observations apply to the present case.
In oral submissions to this court, the appellant contends that this is an exceptional case where a conclusion as to the judge’s findings can safely be drawn from what the judge said in the course of submissions.[35] The appellant submits that the passage of his Honour's sentencing remarks set out at [26] above reveals that the judge sentenced the appellant on the basis that he had, on a number of occasions, permitted his post office box to be used for the importation of cannabis into Kununurra.[36]
[35] Appeal ts 11.
[36] Appeal ts 12 ‑ 13.
In our opinion, there is no merit in this submission. The judge observed that there was a need for specific deterrence in circumstances where the present occasion was the third occasion that the appellant had been convicted of such an offence. In our view, the reference to 'such an offence' is a reference to an offence involving cannabis, not an offence involving cannabis through the use of a post office box. The judge's observation as to the need for specific personal deterrence was amply justified. We do not read the reference to the appellant facilitating drug supply by allowing the use of his post box as referring to earlier offences, but, rather, simply to the present offence.
Further, and in any event, we are not persuaded that if, contrary to our view, his Honour made the error alleged, the error would have been material. The judge's observation was directed to the need for personal deterrence in the context of the appellant having committed three cannabis offences. Whether earlier offences involved the use of the appellant's post office box did not add, in any material way, to the importance of personal deterrence as a sentencing factor.
For these reasons, we refused leave to appeal in relation to ground 1.
Ground 2: disposition
Ground 2 asserts that the judge erred in determining that the appellant's plea of guilty was not entered at the first reasonable opportunity.
It is by no means clear that the sentencing judge made such a finding. As we have said, regrettably, the transcription of the relevant part of his Honour's sentencing remarks is incomplete.
We accept that his Honour's incompletely recorded statement that the matter 'did not come before the court at … on the first available date' may support a conclusion that his Honour found the plea was not at the first reasonable opportunity. However, it may have merely been a reference to the appellant's failure to attend the Magistrates Court on the first occasion, namely 17 July 2017. The judge found that the plea was a fast‑track plea.[37]
[37] White AB 79.
In any event, in our view, it was open to the judge to find that the plea was not entered at the first reasonable opportunity. The meaning of the notion of 'first reasonable opportunity' in s 9AA has been discussed in the cases.[38] In Rossi v The State of Western Australia, as the appellant emphasises, McLure P (with whom Mazza JA and Hall J agreed) said:
1.The first opportunity to plead guilty is not necessarily the first reasonable opportunity to plead guilty.[39] Whether or not it is requires an objective assessment of when, having regard to all the circumstances of the case, it would have been reasonable for the offender to have pleaded guilty.[40]
2.Section 9AA does not reveal an intention to reward or require hasty or unreasonable pleas of guilty.[41]
3.Often, but not in every case, the first reasonable opportunity to plead guilty would be after the statutory requirements in s 35(4), (5), (6), (11) and (12) of the Criminal Procedure Act 2004 (WA), as applicable, have been satisfied (emphasis added).[42]
[38] See, for example, Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [67] ‑ [70].
[39] Rossi [53].
[40] Rossi [53].
[41] Rossi [67].
[42] Rossi [68].
So, in determining whether a plea of guilty was at the first reasonable opportunity, regard must be had to the nature and circumstances of the offence. In the present case, the charge was one of attempted possession of cannabis with intent to sell or supply. The appellant admitted, when spoken to by police on the day of the offence, that he believed that the package he was receiving contained cannabis. He also said that he intended to pass the package on to another. Thus no further facts or evidence, of which the appellant was unaware, were needed to demonstrate the appellant's guilt of the offence with which he was charged. The appellant had admitted his guilt, as he must have known.
The appellant was due to appear before the Magistrates Court on 17 July 2017. He failed to appear. He then appeared on 20 July 2017. The appellant was remanded until 4 August 2017. On 4 August 2017, he was remanded to 1 September 2017. The court records indicate that the appellant was awaiting a grant of legal aid. On 1 September 2017, the appellant was remanded to 16 October 2017 for legal advice, and awaiting the provision of the video record of interview. On 16 October 2017, he was remanded to 3 November 2017. The court records indicate that the parties were undertaking discussions with the police with a view to resolving the matter.
On 3 November 2017, the appellant entered his plea of guilty.
In this framework, the plea was not entered at the first reasonable opportunity. Given the simple character of the offence, and the appellant's knowledge of all matters demonstrating his guilt of it, provision of the video record of interview was not necessary in order that the first reasonable opportunity to plead guilty be reached. There was no suggestion that the appellant was in any doubt as to what he had told the police.
In any event, it was well open to find that the first reasonable opportunity to plead guilty was, in this case, no later than on 16 October 2017, when the matter was further adjourned, evidently to facilitate discussions with the police. On appeal, the appellant submits that it was appropriate that negotiations with a view to avoiding any factual issues be resolved before the appellant entered his plea.[43] In the present case, it may well have been strategically advantageous, from the appellant's viewpoint, to pursue those negotiations, but in the circumstances it was not reasonable, in identifying the first reasonable opportunity for the purposes of s 9AA, to delay the entry, or indication, of the plea until the negotiations were completed or abandoned.
[43] Appeal ts 17 ‑ 19.
For these reasons, while we granted leave in respect of ground 2, we would dismiss the ground.
Ground 3: disposition
Ground 3 asserts that the judge denied the appellant procedural fairness in his approach to the s 9AA discount. The appellant points to the acceptance by the State that the plea was made at the first reasonable opportunity and that the State did not oppose the maximum discount being applied. The appellant complains that the judge gave a discount of only 15% on the basis of the strength of the State case and the stage at which the plea was entered without giving counsel the opportunity to make submissions.
Insofar as the appellant complains that he should have been given the opportunity to advance submissions in relation to the strength of the State case, we would not accept the ground. It is well established that the strength of the State case is relevant to the extent of the discount under s 9AA.[44] We apply the principles concerning procedural fairness in the context of s 9AA set out recently in Ugle v The State of Western Australia.[45] Although, in this case, after counsel for the appellant had completed her submissions, the prosecutor conceded that the maximum discount could be applied, the following observations in Ugle otherwise seem to us to apply, and to explain why there was no breach of procedural fairness in relation to the making of submissions as to the strength of the State case:[46]
In the present case, the appellant's sentencing counsel should have been aware that the judge would consider the benefits to witnesses and the State in exercising the court's discretion under s 9AA of the Sentencing Act. The State did not take any issue with the submission advanced by the appellant's sentencing counsel to the effect that the maximum discount should be applied. However, there was no concession by the prosecutor or indication by the judge that the maximum discount would be applied. The appellant had the opportunity to advance submissions as to the extent of the benefits to the State. The strength of the State's case was a factor which was recognised by the authorities as relevant to the assessment of the benefits and the discount which should be applied. Consideration of these matters was an inherent part of the exercise of the court's discretion under s 9AA of the Sentencing Act. The appellant's sentencing counsel had the opportunity to make submissions on that issue which should have been anticipated as relevant.
[44] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [58] ‑ [61]; Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380 [26].
[45] Ugle v The State of Western Australia [2018] WASCA 97 [35] ‑ [39].
[46] Ugle [40].
The question of whether the plea was entered at the first reasonable opportunity is a more fact‑based inquiry than the discretionary judgment involved in determining the appropriate discount.
It was for the appellant to establish, before the sentencing judge, that he entered his pleas of guilty at the first reasonable opportunity.[47] Counsel's submissions to the sentencing judge went no further than to submit that it was open to the judge to consider applying the maximum. By necessary implication, that involved a submission that the plea was at the first reasonable opportunity. Before the sentencing judge, counsel did not seek to make that proposition good prior to the completion of her sentencing submissions in chief, and prior to the prosecution's sentencing submissions.
[47] Rossi [74].
However, in circumstances where the prosecution then expressly conceded that the plea was entered at the first reasonable opportunity, it is strongly arguable that it was incumbent on the judge to indicate to the appellant that he did not necessarily accept that the plea was made at the first reasonable opportunity, if he were minded to so find. In effect, what was said by the prosecution indicated that both parties were conducting the case on the basis that the plea was at the first reasonable opportunity. It is strongly arguable that, before the judge made a finding to the contrary, procedural fairness required that the judge informed the parties of this prospect.[48]
[48] See Ugle [36] and cases there referred to.
As we have said, the incomplete record of proceedings makes it difficult to draw a firm conclusion as to whether the judge found that the plea was not entered at the first reasonable opportunity. However, that difficulty does not impinge on the efficacy of the appellant’s exercise of his right of appeal in this case[49] because, for the reasons set out below, we are satisfied that, assuming ground 3 were made out, a different sentence should not have been imposed.
[49] See Brown v The Queen (Unreported, WACCA, Library No 6028, 3 October 1985); Lam v Beesley (1992) 7 WAR 88.
Should a different sentence have been imposed?
This court may allow an appeal against sentence if, but only if, in its opinion a different sentence should have been imposed.[50] Where an error of principle has been established, this court must consider, afresh and for itself, the sentence which, in its view, ought to have been passed.[51] That is the approach we take to the resentencing exercise, on the assumption that ground 3 has been established.
[50] Criminal Appeals Act, s 31(3), s 31(4)(a).
[51] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [35]; DL v The Queen [2018] HCA 32 [9]; Jones v The State of Western Australia [2018] WASCA 105 [27].
Where this court's jurisdiction to resentence an offender is enlivened by a finding of error, the so‑called tinkering principle does not apply.[52]
[52] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476 [114]; Jones [28].
The appellant's offence had serious elements. He attempted to possess more than 1.3 kg of cannabis with intent to sell or supply. He committed the offence while on bail for a drug charge. The appellant had two previous convictions for possession of cannabis with intent to sell or supply. As the sentencing judge rightly observed, personal deterrence was a significant factor in the sentencing exercise.
In the circumstances outlined in [46] ‑ [50], we would discount the head sentence pursuant to s 9AA of the Sentencing Act by 20%.
We would, upon resentencing, after taking into account all relevant sentencing factors (including the matters of mitigation mentioned by his Honour), impose a sentence of 20 months' immediate imprisonment.
Conclusion
For these reasons, we dismissed the appeal and made the other orders set out at [3] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH21 SEPTEMBER 2018
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