Stamp v The State of Western Australia
[2025] WASCA 133
•5 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STAMP -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 133
CORAM: MAZZA JA
MITCHELL JA
HALL JA
HEARD: 4 AUGUST 2025
DELIVERED : 5 SEPTEMBER 2025
FILE NO/S: CACR 73 of 2024
CACR 110 of 2024
BETWEEN: HEATHER ANNE STAMP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 39 of 2022
Catchwords:
Appeal against conviction - Whether counsel failed to adequately advise the appellant in relation to the appellant's election not to give evidence - Whether this failure resulted in a miscarriage of justice
Appeal against sentence - Whether total effective sentence of 6 years 6 months' imprisonment infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 417(1)
Firearms Act 1973 (WA), s 19(1)(c)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeals dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M R Gunning |
| Respondent | : | L M Fox SC & M L Wong |
Solicitors:
| Appellant | : | Gunning Young Barristers and Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Clarke v The State of Western Australia [2018] WASCA 190
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Huggins v The State of Western Australia [2018] WASCA 61
Jeffery v The State of Western Australia [2018] WASCA 219
Jneid v The State of Western Australia [2018] WASCA 67
Kabambi v The State of Western Australia [2019] WASCA 44
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Roffey v The State of Western Australia [2007] WASCA 246
Contents
Introduction
Prosecution case at trial
Defence case at trial
Prosecution evidence at trial
Detective Senior Constable Sneddon
Detective Senior Constable Dragojevic
Detective First Class Constable Mears
Kate Benson
Detective Senior Constable Jack Daniels
Defence evidence at trial
Closing submissions
Ground of the conviction appeal
Additional evidence in the conviction appeal
Credibility findings
Factual findings
Engagement of trial counsel
Meeting on 27 September 2023
Discussions with trial prosecutor and Mr Padberg's counsel
Meeting on 6 October 2023
Obtaining proof of evidence from Mr Padberg
Instructions, advice and appellant's understanding about election
Disposition of conviction appeal
Sentence appeal
Circumstances of the offending
Personal circumstances
The totality principle
Sentencing for drug offences
Appellant's submissions
Disposition of sentence appeal
Orders
CACR 73 of 2024: conviction appeal
CACR 110 of 2024: sentence appeal
JUDGMENT OF THE COURT:
Introduction
On 23 October 2023, the appellant was convicted after trial by jury of:
(a)three counts of possessing methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA);
(b)three counts of possessing cash reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA); and
(c)two counts of unlicensed possession of a firearm, contrary to s 19(1)(c) of the Firearms Act 1973 (WA).
The appellant was also acquitted of four other charged offences.
All of the offences of which the appellant was convicted occurred on 25 March 2021 at a house at Ridgewood, a suburb of Perth. She was alleged to have been jointly in possession of the drugs, cash and firearms with Wayne Padberg. Mr Padberg pleaded guilty to the counts on the first day of trial.
The appellant was represented by counsel at trial. The appellant elected not to give evidence but adduced the evidence of Mr Padberg in her defence.
On 27 February 2024, the appellant was sentenced to a total effective sentence of 6 years 6 months' imprisonment, with eligibility for parole. The sentences were backdated to 11 July 2023 to take account of time spent in custody on remand.
The counts of which the appellant was convicted, and the individual sentences imposed on those counts, are set out in the following table:
Count
Offence
Maximum imprisonment
Sentence imposed
Accumulation
4
Possession of methylamphetamine with intent to sell or supply (trafficable quantity)
Life imprisonment
3 years
Concurrent
5
Possession of methylamphetamine with intent to sell or supply (trafficable quantity)
Life imprisonment
6 years
Head sentence
6
Possession of methylamphetamine with intent to sell or supply
25 years and/or $100,000 fine
6 months
Concurrent
7
Possession of cash reasonably suspected of being unlawfully obtained
7 years
3 months
Concurrent
9
Possession of cash reasonably suspected of being unlawfully obtained
7 years
6 months
Concurrent
10
Possession of cash reasonably suspected of being unlawfully obtained
7 years
9 months
Concurrent
12
Unlicensed possession of a firearm
5 years
6 months
Cumulative
14
Unlicensed possession of a firearm
7 years
6 months
Concurrent
Total effective sentence
6 years 6 months' imprisonment
On 18 July 2024, the appellant appealed against her convictions. On 16 October 2024, the appellant appealed against her sentences. As both appeals were instituted out of time, the appellant requires extensions of time to appeal. The applications for extensions of time and the applications for leave to appeal have been referred to the hearing of the appeals.
The appellant was self-represented for most of the course of the appeals and struggled to articulate an argument in support of the appeals. Shortly prior to the hearing of the appeals, Mr Gunning came onto the record as the appellant's legal representative and presented the appellant's oral submissions at the appeal hearing. The court expresses its gratitude for the assistance which Mr Gunning provided to the court and the appellant in presenting a coherent argument in support of the appeals.
Ultimately, the appellant advanced one ground in each of the appeals. The sole ground in the conviction appeal is that a miscarriage of justice occurred at the trial as a result of the incompetence of the appellant's trial counsel, and the failure to adequately advise the appellant in relation to her election not to give evidence. The sole ground in the sentence appeal is that the total effective sentence of 6 years 6 months' imprisonment infringed the first limb of the totality principle.
Both the appellant and respondent applied for leave to adduce additional evidence in the conviction appeal. Those applications were referred to the hearing of the appeal. The court received the proposed additional evidence provisionally at the hearing of the appeal and said that it would rule on the applications in these reasons.
For the following reasons, both appeals should be dismissed.
Prosecution case at trial
The prosecution case at trial, so far as it related to offences of which the appellant was convicted, was as follows.
On 25 March 2021, police executed a search warrant at the Ridgewood home which the appellant shared with Mr Padberg. Police found a total of 644.08 g of methylamphetamine, a total of $277,690 in cash and three firearms at the premises.[1] Those items were hidden in various places throughout the house, including a number of purpose‑built hiding spots in the walk-in wardrobe and in the kitchen floor. The State alleged that the appellant was in joint possession of the items with Mr Padberg as part of their drug dealing enterprise.[2]
[1] Trial ts 259.
[2] Trial ts 251.
When police attended the Ridgewood house on 25 March 2021, the house was fortified with a security system including a CCTV system which fed into large screens at the front of the house.[3] During the course of the search, police relevantly located:[4]
[3] Trial ts 258.
[4] Trial ts 258 - 259.
1.82 g of methylamphetamine in a clipseal bag with Mr Padberg's DNA on it (count 4) and $37,970 in cash (count 9) in a purpose-built concealment in the walk-in wardrobe floor of the master bedroom that the appellant shared with Mr Padberg.
2.Three bags hidden in a purpose-built concealment in the kitchen floor, underneath a kitchen cabinet, which held the following contents:
(a)bag one held four clipseal bags each containing 139 g of methylamphetamine (556 g in total) (count 5) and $8,520 in cash (count 10);
(b)bag two held $76,150 in cash (count 10), a bottle of dexamphetamine containing 100 tablets, some scales, and some empty unused clipseal bags; and
(c)bag three held two clipseal bags with small quantities of methylamphetamine in them as well as a receipt in Mr Padberg's name.
3.$11,850 in cash also located in the concealment in the kitchen floor (count 10).[5]
4.6.08 g of methylamphetamine hidden in a recess behind one of the kitchen cupboards (count 6).
5.$5,000 in cash on a shelf of a living area (count 7).
6.An SKS rifle (count 12) and a sawn-off shot gun (count 14) in the walk-in wardrobe in the master bedroom, near where the cash and methylamphetamine were located.
7.$22,000 in loose gemstones found under the bed in the appellant's son's bedroom.
[5] Trial exhibit 50; trial ts 882.
The appellant's mobile phone was seized by police. On examination, it was found to contain:[6]
1.Messages consistent with drug dealing.
2.Photographs of 'tick lists' (records of people owing money for drugs) and a message sending one of the tick lists to Mr Padberg.
3.A video taken of Mr Padberg counting a large quantity of cash, while an unidentified female in the background appears to be smoking drugs.
4.Evidence of the use of the Signal application, including with Mr Padberg.
5.Photographs and videos of Mr Padberg doing a complete kitchen renovation, which included removing and replacing all of the kitchen cabinets and flooring, at the house in the months preceding the search. The concealment which police found in the kitchen floor in March 2021 was not present at the time those photographs and videos were taken.
[6] Trial ts 260 - 261.
During the search, the appellant admitted to using cannabis and methylamphetamine, and to knowing about some of the smoking implements police had found throughout the house. She denied knowing anything about the items that were the subject of the charges of which she was convicted.[7]
[7] Trial ts 261.
The prosecution would also produce tax records, which showed that the appellant's only source of income over the last five years was Centrelink payments and small child support payments; and bank records, which showed payments consistent with income from the sale of drugs that could not be explained by those legitimate sources of income.[8]
[8] Trial ts 261.
On 31 March 2021 (six days after the initial search), police executed another search warrant at the Ridgewood house. During the course of that search, police found a notebook which contained handwritten notes written by the appellant, which included admissions as to the role that she played in the drug dealing enterprise with Mr Padberg.[9]
[9] Trial ts 261.
Defence case at trial
The appellant's defence case at trial in relation to the charges of which she was convicted was that the drugs, cash and firearms found in the house on 25 March 2021 were Mr Padberg's alone and that the appellant and Mr Padberg were not in a joint enterprise. Therefore, she was not in possession of those items.[10]
[10] Trial ts 270.
Prosecution evidence at trial
The following is a summary of the prosecution evidence adduced at trial in relation to the offences of which the appellant was convicted. As there is no controversy about the fact that Mr Padberg was conducting a drug dealing enterprise, or the location of the items the subject of the charges at the Ridgewood house, we will focus on the evidence concerning the appellant's knowledge of and participation in that enterprise.
Detective Senior Constable Sneddon
Detective Sneddon was present when police executed a search warrant at the Ridgewood house at about 6.35 pm on 25 March 2021. As there was a metal gate at the front of the house, police waited for someone to come out before driving up and entering the house while the doors were open.[11] Detective Sneddon described and produced photographs of the location of items in the house. He said that the appellant was outside the house with her son when police entered the house and Mr Padberg was in the kitchen.[12] He also described police returning to the house on 31 March 2021, when the appellant was present and removalists were delivering a kitchen item.[13]
Detective Senior Constable Dragojevic
[11] Trial ts 384, 393 - 394.
[12] Trial ts 390 - 391.
[13] Trial ts 392.
Detective Dragojevic was present during the search of the Ridgewood house on 25 March 2021, and located various items. The appellant, Mr Padberg and two other men were at the house at that time.[14]
[14] Trial ts 405.
Detective Dragojevic also attended with other officers on 31 March 2021, at which time he recalled the appellant being the only person present at the house.[15] In cross-examination, he accepted that there were two other people at the front of the house who he believed were helping the appellant to move.[16] He gave evidence of the notebook being located on one of the kitchen benchtops during that search of the house.[17]
Detective First Class Constable Mears
[15] Trial ts 400.
[16] Trial ts 407.
[17] Trial ts 402.
Detective Mears was the investigating officer in relation to the search of the Ridgewood house conducted on 25 March 2021, and was present coordinating that search. The appellant was out the front of the property just by the door when the search began. Mr Padberg and another person were inside the house.[18]
[18] Trial ts 485.
Detective Mears produced a recording of the search of the Ridgewood house.[19] That video showed the appellant admitting ownership of some items, but denying knowledge of items which were the subject of the charges of which she was convicted.[20]
[19] Trial exhibit 42.
[20] See ts of recording of the search of the Ridgewood house at pdf pages 72 - 73, 117.
Detective Mears also produced a record of text messages downloaded from the appellant's mobile phone which was seized during the search on 25 March 2021. Some of those messages were between the appellant and Mr Padberg, who was designated on the mobile phone as 'Comedienne' and 'Babysig'. A message sent to 'Babysig' at 9.58 pm on 30 November 2020 attached what appeared to be an image of a tick list.[21]
[21] Trial exhibits 54 and 56.
The following text message exchange occurred between Mr Padberg and the appellant on 1 December 2020 between 5.56 pm (when the first message was sent) and 6.50 - 6.51 pm (when the balance of the messages were exchanged):[22]
[22] Trial exhibit 53.
Mr Padberg: I'm doing the big deal at 8pm tonight so dinner will have to be later
Appellant:I just saw your message
Killer
So you will be out?
Mr Padberg: I'm doing the 100 deal
Other messages were exchanged between the appellant and a person designated on the mobile phone as 'Shane Jay', which suggested that Mr Jay was trying to source drugs from the appellant.[23] Those messages included the following between 13 November 2020 and 24 December 2020:[24]
[23] Trial exhibit 57.
[24] Trial exhibit 57.
Appellant:Hey jay sorry I've just seen this message r u ok?
Shane Jay:Yeah all is fine just wanted to visit Wayne but then seen the time when I sent the txt. Sorry
Hey it's jay do you think you could do me some stuff please, I've been up all night and all day as our kids are so sick with this virus going around I can hardly stay awake please
Hey could u do pick up between 2.30 and 3.00 please
Appellant: Yeah thanks that's fine
Messages between the appellant's mobile phone and a person designated as 'Shane' included the following exchange between 2.00 pm and 2.54 pm on 17 March 2021:[25]
[25] Trial ts 447 - 448; trial exhibit 60.
Shane:A can we come over how long will you be
Appellant:I left it out for u
Shane:We're
Appellant:In under gate your right handside
Shane:Thanks
There's only 2 here should be 3 tell him to call me, please thanks
Appellant:Omg
10.5
Is 3
Images stored on the appellant's mobile phone included tick lists and the following typed note:[26]
He paid nothing and owed 800 already (thumbs up emoji)
This morning renae came to the gate and you couldn't tell me where the scales were. I wasn't feeling well so did my best to do by eye.
She was going to tell me how much when she got home which she did and says she now owes 600.
Then toby Sean paid 450 owes 50 and I used his scales to do up just over a gram.
Leanne then arrived with my smokes and had 2400 took a 1/4
Jeremy 50 bucks for himself
550 I think for his mate for a gram
Had no scales again showed you what I thought would be a gram and you said yep
[26] Trial ts 460 - 461; trial exhibit 66.
Detective Mears also produced images and videos extracted from the appellant's mobile phone.[27] These included a Snapchat video, in which the appellant can be heard laughing, showing Mr Padberg counting a large sum of money and an unidentified female who appears to be using drugs in the background.[28]
[27] Trial ts 461 - 463; trial exhibits 67 - 68A.
[28] See trial ts 495 - 496; trial exhibit 68A.
Detective Mears produced photographs of the notebook seized from the Ridgewood house on 31 March 2021,[29] which contained various lists and long passages of what appears to be the appellant complaining to Mr Padberg about the domestic chores she had to do and the lack of support he provided her and her son (who it is convenient to refer to by the pseudonym 'Brian'). Some of those notes contain incidental references to what appears to be drug dealing activity. For example, one note read:[30]
[29] Trial exhibit 69.
[30] Blue/Green AB 75.
Most Days
Wake up 7 am (you still up or slumped on couch).
Get [Brian] ready for school
Uniform
Breakfast
Lunches
Then I DRIVE him to school (no licence)
(Never offered to help to get him there, even though you just expect me to do your work)
Get back from school drop usually have a smoke!
Then I go out & give dogs biscuits & water - chuck washing on.
Most of the time you've gone by now. I deal with everyone that comes in. I do the cypher bullshit when needed I bring 20 kilos of CRACK into the house knowing ZERO at what to do
I answer the gate to shit putting me at risk day n Night
I clean all day INSIDE & OUT
(emphasis added)
Another note read:[31]
I vacuum & mop walk back out & you have sanded the roof onto EVERYTHING INCLUDING WHAT WE EAT OFF.
You expect me to just STAY & TAKE care of your people & all of the shit that goes with the 20 odd people that come while your DROPPING SOMEONE HOME (with a sore back).
I haven't gone to do anything for [BRIAN'S] B'DAY shopping or for anything other than for SHIT for you from Bunnings or DOG FOOD for SO FUCKING LONG.
I worked to clean MY COUCH FFS and carpets - Do YOU THINK I have been able to get the cunt? NO even said NO at Bunnings with me!!!
(emphasis added)
[31] Blue/Green AB 77.
Detective Mears produced tax office records which showed that the appellant reported the following taxable income in the 2017/2018 to 2021/2022 financial years:[32]
[32] Trial ts 471 - 472; trial exhibit 70A.
Financial year
Reported income
Taxable income
2017/2018
$7,687
$7,687
2018/2019
$17,216
$16,766
2019/2020
$16,593
$16,593
2020/2021
$15,486
$14,796
2021/2022
$15,353
$14,831
Detective Mears also produced bank statements for accounts in the appellant's name which showed regular deposits being made in amounts less than $5,000.[33] The records show a deposit of $100,000 in the NAB account on 22 July 2020. Detective Mears said that police were making inquiries as to that deposit but she did not know what it related to.[34]
[33] Trial exhibits 71 - 74.
[34] Trial ts 488 - 489.
In cross-examination, Detective Mears accepted that the appellant told police that she had lived at other properties, such as 'Airbnbs' and 'short-term stays' during the period between 4 December 2020 and 25 March 2021.[35] Through Detective Mears, the appellant's trial counsel tendered a tax invoice and receipt to the appellant from Quest Joondalup for the period 29 November 2020 to 12 December 2020.[36]
[35] Trial ts 484.
[36] Trial ts 484; trial exhibit 75.
Detective Mears accepted that police records showed that a home invasion was reported at the Ridgewood address on 3 December 2019, when the appellant and her son Brian were present but Mr Padberg was not.[37]
[37] Trial ts 490.
In cross-examination, Detective Mears accepted that, on 26 March 2021, the appellant was charged in relation to matters found in the search on 25 March 2021. The appellant was released on bail back to the Ridgewood address on 27 March 2021, after a court appearance. Detective Mears confirmed that the notebook was found in the search of 31 March 2021, that the notes were not dated, and that the notebook had not been subject to fingerprint, DNA or handwriting analysis.[38]
[38] Trial ts 490 - 492.
Detective Mears also accepted that Mr Padberg had been convicted of drug offences in November 2017 when he was living at the Ridgewood address.[39]
Kate Benson
[39] Trial ts 498 - 499.
Ms Benson was a jewellery valuer who valued the gemstones, watches and jewellery located at the Ridgewood house at a total of $95,072.[40] The gemstones found under Brian's bed were assessed as having a wholesale value (excluding GST) of $21,840.[41]
Detective Senior Constable Jack Daniels
[40] Trial ts 509.
[41] Trial ts 504.
Detective Daniels gave expert evidence as to the common indicia and methods of drug dealing.
Defence evidence at trial
The prosecution case was closed at about 4.20 pm on 18 October 2023. Shortly after court commenced the following day at about 10.00 am, the appellant's trial counsel said that the appellant elected to adduce the evidence of Mr Padberg but not to give evidence herself.[42]
[42] Trial ts 571.
Mr Padberg's evidence was that he moved into the Ridgewood house in December 2016 and had renovated the house since that time. The appellant first moved in with her son Brian when Mr Padberg was incarcerated for drug dealing in 2020.[43] While he was incarcerated, there was a home invasion at the Ridgewood house in which the appellant was held hostage for four or five hours at gunpoint. After this occurred, Mr Padberg said the appellant 'put some cheap cameras up'.[44]
[43] Trial ts 572.
[44] Trial ts 575.
Mr Padberg said that he was released from prison in July 2020 and returned to live at the Ridgewood house. The appellant and her son were living in the house. Mr Padberg put a 'proper CCTV system in the house for safety'. Also at about that time, the appellant received a payment of $100,000 as a Redress scheme settlement.[45] Mr Padberg said that he would transfer money to the appellant so that she could pay bills and for general living expenses.[46] He said that he gave Brian the gemstones found under Brian's bed.[47]
[45] Trial ts 575 - 576.
[46] Trial ts 577.
[47] Trial ts 583.
Mr Padberg described the relationship between him and the appellant in 2020 and 2021 as 'very up and down' and 'very challenging'. He said:[48]
We would argue a lot about various things. We'd argue about the people that I had coming to the house. We'd argue about the amount of time that I'd spend with her. Just things like that.
And after - or during these arguments would [the appellant] remain at the - the address?---No. She would always leave. So in the space of about three, four months, she must have only spent probably three weeks, four weeks at the house on and off. Every time we would have an argument, she'd just grab [Brian] and some things and she would leave.
Where would she go?---Various places. Sometimes I wouldn't know where she was. Other times I would. She would stay at Airbnbs, places in - like the Quest Hotel in Joondalup and stuff like that.
And the source of - of these arguments?---The main source of it was pretty much she always said I never spent any quality time - any quality time with her or [Brian] and that would cause massive - massive dramas. The people that would come to the house, the amount of people that were coming to the house, when they were coming to the house, used to cause massive arguments as well.
And was your relationship continuous throughout this period?---It was on and off.
[48] Trial ts 574.
Mr Padberg said that his bedroom was the master bedroom at the front of the Ridgewood house. Brian's room was at the back of the house. A spare bedroom closest to the master bedroom was used as an entertainment area and the appellant stored her stuff in the other spare room at the back of the house.[49]
[49] Trial ts 573.
Mr Padberg's evidence was that, in March 2021, he was using 3 ‑ 5 g of methylamphetamine a day and he observed the appellant to be using 'maybe half a gram a day'.[50] Other people would attend the house and use illicit substances. Mr Padberg said he never saw the appellant selling or supplying illicit substances. He would sometimes give the appellant illicit substances to use.[51]
[50] Trial ts 577.
[51] Trial ts 578.
Mr Padberg described using three mobile phones and changing them often to avoid leaving evidence for police to detect. He also described using the appellant's mobile phone to photograph or write tick lists thinking that police would never arrest the appellant and 'grab her phone'.[52]
[52] Trial ts 578 - 581.
Mr Padberg said that, between August 2020 and March 2021, he was dealing substantial quantities of illicit substances including methylamphetamine. Deals would be done in the master bedroom of the Ridgewood house when the appellant was not in the room. He did not tell the appellant about the concealed areas where he hid items. The cash, firearms and drugs were never left out in the open because the appellant and her son were there.[53] Mr Padberg's evidence was that the cash, firearms and drugs located by police at the Ridgewood house were his and his alone.[54]
[53] Trial ts 581 - 584.
[54] Trial ts 591 - 592.
Mr Padberg maintained the above account when challenged in cross-examination. It is unnecessary for present purposes to detail all of the cross-examination. We do, however, note that Mr Padberg's evidence was that he was still in a relationship with the appellant at the time of the trial, and that he maintained regular contact with her while he was in custody. Mr Padberg said he loved the appellant, hoped to continue the relationship when he was released from custody and intended to keep allowing the appellant to live in his home while he was in custody.[55]
[55] Trial ts 600.
After the conclusion of Mr Padberg's evidence, the appellant's trial counsel tendered documents relating to the Redress scheme settlement payment made to the appellant.[56] He then closed the defence case.
[56] Trial ts 625 - 626; trial exhibit 88.
Closing submissions
It is unnecessary for present purposes to analyse the prosecutor's closing submissions in any detail. In essence, the prosecution invited the jury to infer from all of the circumstances established by the evidence that the appellant was jointly involved in a drug dealing enterprise with Mr Padberg, knew that the drugs, cash and firearms were in the house, and had the ability and an intention to exercise control over them. She was therefore in possession of the items the subject of counts 4 - 14 on the indictment.
The defence case in relation to counts 4 - 14 was that the appellant denied knowledge and ownership of the items in question. Trial counsel noted that the appellant denied knowledge and ownership of the items during the search conducted on 25 March 2021.[57] The items were concealed in locations where they would not be obvious to her and, in the case of the items concealed in the walk-in wardrobe of the master bedroom, were in a location which police had said was dominated by male clothing.[58] The appellant's trial counsel invited the jury to accept Mr Padberg's evidence and suggested that Mr Padberg was telling the truth under oath and 'was simply doing the right thing'.[59]
[57] Trial ts 714.
[58] Trial ts 714 - 716.
[59] Trial ts 716 - 717.
As to the notebook, trial counsel submitted that it might be difficult for the State to prove who made the entries in the absence of any fingerprint, DNA or handwriting analysis. Trial counsel also submitted:[60]
Members of the jury, when you review the entries within that diary, and if you are satisfied that that is the work or those entries are by [the appellant] then I ask you the following question. Could it not have been written after the 25 March raid where all of the items, the drugs, the cash, the firearms have been placed in front of her, with her then denying ownership and knowledge?
It's open for you to consider that the entries followed the charges. The awareness of what was put in front of her, is then put in to the diary.
[60] Trial ts 718.
Ground of the conviction appeal
The sole ground of the conviction appeal is that:
A miscarriage of justice occurred at the trial as a result of the incompetence of defence counsel, and the failure to adequately advise the appellant in relation to the election to not give evidence.
The general principles governing the determination of this ground of appeal are well established. They were summarised by this court in Huggins v The State of Western Australia.[61] We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:[62]
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
[61] Huggins v The State of Western Australia [2018] WASCA 61 [376] - [401].
[62] Huggins [376].
Further, as was reiterated in Jeffery v The State of Western Australia,[63] this court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. The question is whether there could be any reasonable explanation for the decision. The test is objective in character.
[63] Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]).
In Jeffery,[64] it was held that a miscarriage of justice occurred because inadequate advice was given to Mr Jeffery by his legal advisers about his choice of whether or not to give evidence. Relevantly, defence counsel spoke to Mr Jeffery while he was in the dock, after the prosecutor in that case had closed the State's case and shortly before the trial was to resume after the lunch adjournment. It was found that they did not discuss the factors which caused counsel to advise Mr Jeffery not to testify, all of which (in the court's view) were debatable and one of which was incorrect. That occurred in circumstances where the court was satisfied that, on an objective assessment of the relevant facts and circumstances, there was, in substance, no forensic reason to not call Mr Jeffery as a witness.
[64] Jeffery [189] - [194].
In Craig v The Queen, the High Court considered how inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice.[65] The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.[66]
[65] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202.
[66] Craig [32].
However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial.[67] In the context of a decision not to give evidence, the court considered that: [68]
At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.
The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[69]
[67] Craig [26] - [27].
[68] Craig [27].
[69] Craig [33].
In oral submissions, the appellant's appeal counsel confirmed that the only issue raised by the sole ground in the conviction appeal was whether the appellant's right to give evidence in her defence was effectively foreclosed by the receipt of incorrect legal advice.[70]
[70] Appeal ts 98.
Additional evidence in the conviction appeal
The appellant, while self-represented, filed many applications to adduce additional evidence in the appeal in support of the ground of appeal. Much of the evidence sought to be adduced in those applications was a repetition of proposed evidence that had been the subject of earlier applications. Further, the affidavits sought to be adduced as additional evidence did not contain any coherent account of the events which the appellant says led to her election not to give evidence in the trial.
Ultimately, at the hearing of the appeal the additional evidence which the appellant sought to adduce in the appeal was confined to the following:
1.The appellant's oral evidence at the appeal hearing as to the circumstances leading to her election not to give evidence, including her oral evidence adopting:
(a)the account of events given in the written submissions forming part of the appellant's case (appeal exhibit A1);[71] and
[71] Appeal ts 39.
(b)a one page 'declaration' signed by the appellant and dated 26 February 2025 (appeal exhibit A2).
2.The following exhibits to a longer affidavit sworn by the appellant on 16 July 2025 (appeal exhibit A3):
(a)Exhibit 1, which the appellant said was the text of an email which she sent to trial counsel on 26 September 2023;[72]
(b)Exhibit 2, which is an email sent by the appellant to trial counsel at 2.08 pm on 26 September 2023 attaching various accommodation receipts;
(c)Exhibit 3, which is a document titled 'Timeline of knowing Wayne Padberg', which the appellant says she emailed to trial counsel;[73]
(d)Exhibit 4, which is a copy of the appellant's signed written instructions to trial counsel that she will not give evidence, to which is attached a transcription of a discussion between trial counsel and Mr Padberg and a rough proof of Mr Padberg's evidence, both signed by Mr Padberg; and
(e)Exhibit 13, which is described as an 'Updated version of Text Message Exchange (Cellbrite Report)', which the appellant says was given to her on a thumb drive after her trial.[74]
3.A shorter affidavit sworn by the appellant on 16 July 2025 (appeal exhibit A4), which attached a signed police statement of the appellant dated 15 July 2025 which describes acts of domestic violence committed by Mr Padberg against the appellant during the course of their relationship.
4.A statutory declaration sworn by the appellant on 21 July 2025 (appeal exhibit A5), which attaches additional pages of the Cellbrite Report which is exhibit 13 to the longer affidavit.
[72] Appeal ts 49.
[73] Appeal ts 77.
[74] Appeal ts 49 - 50.
In response to the ground of appeal against conviction, the respondent seeks leave to adduce an affidavit sworn by trial counsel on 9 April 2025 (appeal exhibit R1) as additional evidence in the appeal. The respondent also tendered an email sent by the prosecutor to trial counsel at 7.19 pm on 9 October 2023 (appeal exhibit R2).
At the appeal hearing, the court said that it would receive the above evidence provisionally and make decisions about its admissibility in due course.[75]
[75] Appeal ts 37.
The only substantive objection to the evidence at the appeal hearing was the respondent's objection to the shorter affidavit on relevance grounds. We would uphold that objection, as the fact that the appellant made a statement to police about domestic violence in 2025 does not assist this court in determining the ground of appeal. The respondent also objected to some handwritten annotations which the appellant had added to a document by way of commentary. However, it was agreed those handwritten notations could simply be ignored.[76]
[76] Appeal ts 107.
Otherwise, we would grant the applications to adduce the evidence noted above as additional evidence in the appeal, on the basis that the evidence is relevant and necessary to enable this court to fairly determine the sole ground of the conviction appeal.
Credibility findings
The appellant did not present as a credible or reliable witness when giving evidence at the hearing of the appeal.
In giving her oral evidence, the appellant was very focussed on pressing her agenda in the appeal often at the expense of responding to questions. She did not present as a witness who was trying her best to provide truthful answers to the questions posed to her. Further, and most significantly, there were two aspects of her oral evidence which indicate that she is not a credible or reliable witness.
First, in cross-examination at the appeal hearing, the appellant was asked about the text message exchanges quoted at [26] - [28] above. She was unable to provide any explanation for these exchanges, which appear to be discussions about drug dealing. The appellant was unable to suggest what, other than drug dealing, might have been the subject of the discussions. She nevertheless maintained that she did not engage in any discussions about drugs.[77]
[77] Appeal ts 65 - 71.
Secondly, the appellant gave an inherently implausible account of the circumstances in which she came to make the entries in the notebook referred to at [31] - [32] above. The appellant gave evidence that, after being released on bail on Saturday 27 March 2021, she returned to the Ridgewood house to find two men in the house who she described as 'bikies'. Those men returned to the house on 30 March 2021. The men told the appellant to write the notes in her son's notebook, saying that they wanted her to take accountability because the appellant had made them lose all their money. The men said that the appellant 'ratted' on Mr Padberg and put him in gaol and that she was responsible for them not having their money. Police then found the notebook when they executed a second search warrant on 31 March 2021, which was to look for tape matching that which was used to wrap the drugs the subject of count 1 on the indictment (of which the appellant was acquitted).[78]
[78] Appeal ts 71 - 74.
The idea that two members of an outlaw motorcycle gang would force the appellant to write a series of long complaining notes about her domestic affairs with Mr Padberg with incidental references to drug dealing, so as to make her take responsibility for having lost them money, is simply preposterous. Further, the two men would have no reason to apprehend that police would conduct a second search and find the notebook. We have no hesitation in rejecting as fanciful the appellant's account of how she came to write the notes in the notebook. Further, the fact that the appellant was willing to give that account when giving evidence under oath leads us to conclude that she is not an honest witness, but rather is willing to fabricate an account to try to explain obviously incriminating evidence.
The appellant's evidence in relation to the notebook in particular leads us to the view that the appellant is neither an honest nor a reliable witness. In general, we would not accept her evidence in the absence of some corroboration of her account.
By contrast, we have no difficulty in accepting the evidence of the appellant's trial counsel. He answered questions directly and appeared to be trying to provide a complete and accurate account of events. Trial counsel's evidence was consistent with other material and in significant respects supported by contemporaneous notes which he had taken. We generally prefer the account given by the appellant's trial counsel over the account given by the appellant where they diverge.
Factual findings
We make the following factual findings as to the events leading up to the appellant's election not to give evidence, but to adduce the evidence of Mr Padberg, at trial. These findings are based principally on the evidence given by the appellant's trial counsel and documentary evidence.
Engagement of trial counsel
In early September 2023, trial counsel, who had previously dealt with the appellant's bail matters, agreed to appear at her trial when another practitioner indicated that he was no longer able to do so.[79] At that time, trial counsel's office contacted the appellant to organise a meeting to obtain full instructions for the trial. The appellant insisted on a conference by Skype or telephone appointment only. Given the volume of materials in the prosecution brief and the proposed electronic exhibits likely to be tendered, trial counsel was of the view that it was not appropriate for a Skype conference or telephone appointment. He advised the appellant that she should attend his firm's office for a meeting.[80]
[79] Trial counsel's affidavit, pars 14 - 37 (appeal exhibit R1).
[80] Trial counsel's affidavit, pars 39 - 40 (appeal exhibit R1).
On 26 September 2023, the appellant emailed to trial counsel's firm various receipts, screenshots of accommodation bookings and accommodation enquiries.[81] The latest of those receipts was for accommodation at an Airbnb in Mindarie from 2 - 25 February 2021.
Meeting on 27 September 2023
[81] Trial counsel's affidavit, par 119; appellant's longer affidavit, exhibit 2 (appeal exhibit A3).
Trial counsel had a short meeting with the appellant in his firm's offices on 27 September 2023. The appellant was late to the meeting and said this was due to an emergency with her pet dog. She confirmed her plea of not guilty to all charges against her. The appellant told trial counsel that she was in daily contact with Mr Padberg, who was in custody at Hakea Prison and had obtained new legal representation. The appellant said she understood that Mr Padberg had advanced a submission to the State offering to plead guilty to several indictable charges on condition that the State's case against the appellant would be discontinued. Substantive trial matters were not discussed at the meeting due to lack of time.[82]
Discussions with trial prosecutor and Mr Padberg's counsel
[82] Trial counsel's affidavit, pars 42 - 43 (appeal exhibit R1).
On 29 September 2023, trial counsel spoke with the trial prosecutor by telephone. The prosecutor advised of the State's reluctance to agree to any submission discontinuing matters against the appellant, and that the State's case remained that the appellant and Mr Padberg were in a joint criminal enterprise. Given this update, trial counsel continued full trial preparation and scheduled another meeting with the appellant.[83]
[83] Trial counsel's affidavit, pars 48 - 52 (appeal exhibit R1).
Trial counsel sent Mr Padberg's lawyer an email on 3 October 2023, asking for her to advise whether Mr Padberg's plea submission had been advanced to the State. On 6 October 2023, Mr Padberg's lawyer advised that the State had not confirmed its position on the plea submission, but she had instructions to contact trial counsel as soon as Mr Padberg had been told about the outcome.[84]
Meeting on 6 October 2023
[84] Trial counsel's affidavit, pars 45 - 47, annexure MH4 (appeal exhibit R1).
Trial counsel met with the appellant at his firm's offices on 6 October 2023. The meeting lasted about 90 minutes.[85] At the meeting, trial counsel gave the appellant advice about the following matters:[86]
[85] Trial counsel's affidavit, pars 53 - 54 (appeal exhibit R1).
[86] Trial counsel's affidavit, par 55 (appeal exhibit R1).
55.1 that I was preparing the trial as if it were still proceeding;
55.2 Mr Padberg was looking to do a deal with the State on a plea proposal;
55.3 it is unlikely that Mr Padberg's plea proposal would result in matters against the Appellant being discontinued;
55.4 there was a real possibility that Mr Padberg would plead guilty on the morning of the trial;
55.5 the current structure of the Indictment, and potential impacts on the Indictment should Mr Padberg plead guilty;
55.6 a summary of the State's case against the other two co-accused Mr Crook and Mr Smith;
55.7 the Counts on the Indictment as far as they related to the Appellant.
55.8 a summary of what I thought to be critical evidence in the State's case against the Appellant, being:
(a) the contents of the Notebook;
(b) the text messages and other downloaded phone content from the Appellant's phone;
(c) the connection [between] the Appellant and Mr Padberg;
(d) the connection the Appellant had with the Ridgewood Address; and
(e) bank documents which were being provided by the State in the days before the trial;
55.9 procedural aspects of the trial including trial bail, surety attendance, the right of challenge and trial format and routine.
During the 6 October 2023 meeting, the appellant:[87]
(a)expressed a reluctance to give evidence in her trial, with her main concern being subjected to cross-examination from the State;
(b)told trial counsel that the jury should know that she had been living at other properties in the lead up to the execution of the search warrants, and about her toxic relationship with Mr Padberg; and
(c)provided an account that the prejudicial entries in the notebook were written by her under duress from men not known to her who threatened violence if she did not comply with their directions.
[87] Trial counsel's affidavit, pars 56 - 58.2 (appeal exhibit R1).
Trial counsel expressed concerns to the appellant about the vagueness, believability and inconsistencies of her account about the notebook entries. He explained an alternate approach to deal with the notebook evidence which would not require the appellant to give evidence. That approach involved advancing a submission along the lines quoted at [53] above. The appellant instructed trial counsel to proceed on that basis.[88]
[88] Trial counsel's affidavit, par 58.3 - 58.7 (appeal exhibit R1).
During the 6 October 2023 meeting, Mr Padberg telephoned the appellant from Hakea Prison, and she had a short conversation with him on her mobile phone. Trial counsel understood that Mr Padberg confirmed to the appellant that he would assist the appellant's case. Trial counsel and the appellant discussed the potential for Mr Padberg to provide evidence which may be exculpatory of the appellant.[89]
[89] Trial counsel's affidavit, pars 59 - 60 (appeal exhibit R1); appeal ts 84.
At the conclusion of the 6 October 2023 meeting, trial counsel said that he would continue to prepare for the trial on the following basis:[90]
61.1 Mr Padberg would likely plead guilty to the charges, and if so, he may be available as a witness for the Appellant;
61.2 the Appellant rejected entirely the State's contention that this was a joint criminal enterprise of which she had knowledge;
61.3 the Appellant was quite anxious about giving evidence in her trial, and it was her expressed preference that she not have to give evidence;
61.4there was a need to extract evidence from the State witnesses and potentially Mr Padberg which the Appellant deemed important for the jury to hear, which included:
(a) the Appellant staying at alternative addresses during this period; and
(b) the toxic relationship the Appellant shared with Mr Padberg.
[90] Trial counsel's affidavit, par 61 (appeal exhibit R1).
On 8 October 2023, the appellant sent trial counsel an email, the substantive text of which is reproduced in exhibit 1 to the appellant's longer affidavit.[91] In that email, the appellant gave a detailed account of domestic violence perpetrated against her by Mr Padberg and her attempts to find alternative accommodation from September 2020 to the date of the police raid on 25 March 2021. The appellant said that on the day of the raid, she was at the Ridgewood house with a friend who was helping her collect belongings to take to storage.
Obtaining proof of evidence from Mr Padberg
[91] Trial counsel's affidavit, par 120 (appeal exhibit R1); appellant's longer affidavit, exhibit 1 (appeal exhibit A3).
At 7.19 pm on 9 October 2023, trial counsel received an email from the prosecutor stating that, a short while ago, she was advised that Mr Padberg would be pleading guilty to all counts on the indictment. The prosecutor said that, notwithstanding the anticipated pleas of guilty, the State case relevantly remained that the appellant was in joint possession of all relevant items the subject of counts 4 - 14 with Mr Padberg in the course of their joint drug dealing enterprise.[92]
[92] Appeal exhibit R2.
Mr Padberg pleaded guilty to all counts on the indictment against him at the commencement of the trial on 10 October 2023. Following Mr Padberg's plea, his counsel provided the appellant's trial counsel with authority to speak with Mr Padberg about his willingness to provide a proof of evidence. The appellant's trial counsel spoke to Mr Padberg in the District Court custody centre after the trial was adjourned at 12.30 pm on 10 October 2023. Trial counsel recorded the interview, which lasted about an hour, on his mobile phone. Mr Padberg's statements were transcribed, and a proof of evidence document prepared. Trial counsel met with Mr Padberg at Hakea Prison for about an hour on Saturday 14 October 2023. Trial counsel showed Mr Padberg the typed proof of evidence document. After making some handwritten amendments, Mr Padberg signed the proof of evidence document. The statements in the document were generally consistent with the evidence Mr Padberg ultimately gave at trial. At the conclusion of the meeting on 14 October 2023, Mr Padberg confirmed that he would give evidence for the appellant consistently with the proof of evidence document and was aware he would face cross‑examination by the State.[93]
[93] Trial ts 223 - 226, 242; trial counsel's affidavit, pars 69 - 81 (appeal exhibit R1); appeal ts 91.
Trial counsel gave the appellant a copy of Mr Padberg's signed proof of evidence document after the meeting at Hakea Prison. Trial counsel explained that Mr Padberg's evidence was exculpatory of her. He also explained the risk that Mr Padberg may not come up to proof or may not give evidence at all, and that she would elect whether to give evidence or not before Mr Padberg was called.[94]
[94] Appeal ts 92, 96.
On the evening of 17 October 2023, trial counsel had a telephone conversation with the appellant which focussed primarily on the decision of whether or not to give evidence in her trial. At the conclusion of that conversation, the appellant advised trial counsel that she did not want to give evidence in the trial.[95]
[95] Trial counsel's affidavit, pars 87 - 88 (appeal exhibit R1).
The prosecution closed its case in the late afternoon of 18 October 2023. Before the trial resumed on the morning of 19 October 2023, trial counsel spoke to the appellant for a few minutes while she was in the dock at the courtroom. Trial counsel read the following document to the appellant, which had Mr Padberg's proof of evidence document attached to it. The appellant then signed the document:[96]
[96] Trial counsel's affidavit, annexure MH8 (appeal exhibit R1).
I HEATHER ANNE STAMP acknowledge as follows:
1. I have had explained to me by my lawyer the risks and benefits of me giving evidence in my trial;
2. I understand that it is my choice alone and I understand that if I do not give evidence, I am not directly able to share my version of events relating to Counts 1 and 4 - 14 on IND 39 2022;
3. I understand that the jury will not hear from me as to my involvement in the allegations relating to Counts 1 and 4 - 14 on IND 39 2022;
4. I understand that if I elect not to give evidence, I cannot change my mind later;
5. I understand that if I do give evidence at my trial, my evidence will be subjected to thorough cross examination by the State (and possibly co-accused);
6. I have reviewed the transcription of evidence Mr Padberg intends to lead as part of my Defence case dated 14 October 2023;
7. I understand that notwithstanding [Mr] Padberg has signed this transcription and has indicated that he will give this evidence if required, that he may not make good on this promise and that this evidence may differ to the evidence that is put before the Jury, particularly after cross examination;
8. I instruct my lawyer that I will not be giving evidence in my trial.
(signed)
HEATHER ANNE STAMP
DATE 19.10.2023
The trial then resumed, and trial counsel advised the court of the appellant's election.
On 20 October 2023, at the conclusion of the prosecutor's closing address to the jury, the appellant provided trial counsel with some handwritten notes in relation to possible alternative explanations for the text messages referred to by the prosecutor.[97]
Instructions, advice and appellant's understanding about election
[97] Trial counsel's affidavit, pars 136 - 137, annexure MH10 (appeal exhibit R1).
Both trial counsel and the appellant gave evidence to the effect that the appellant's instructions were always that she did not know about the items found in the Ridgewood house and that she had no involvement in Mr Padberg's drug dealing activities.[98] We accept that the appellant maintained these instructions to trial counsel at all times.
[98] Appeal ts 43 - 44, 93, 95.
We do not accept the appellant's evidence that she was forced or pressured into making the decision not to give evidence at her trial, or that the decision was based on a suggestion from trial counsel that, 'The prosecutor is going to have you for breakfast, I say we put Padberg on the stand'.[99] In light of the credibility findings noted at [67] - [73] above, we accept trial counsel's denial of the appellant's account to that effect.
[99] Appellant's submissions, pars 44 - 45 (White AB 20), adopted at appeal ts 39.
We find that trial counsel formed the view that it was better for the appellant not to give evidence at trial. Trial counsel accepted this proposition in cross-examination.[100] We have also noted, at [82] above, that he informed the appellant that her account of how the entries came to be placed in the notebook was vague and not believable. Given these aspects of trial counsel's evidence, we are prepared to accept the appellant's evidence that she understood the advice to be that she should not give evidence.[101]
[100] Appeal ts 95 - 96.
[101] Appeal ts 53 - 54.
However, while the appellant is likely to have formed this impression in her interactions with trial counsel, we find that trial counsel advised the appellant that the decision was hers to make and of the 'pros and cons' of her giving evidence. We accept trial counsel's evidence that he gave the following advice at his meeting with the appellant on 6 October 2023 and their telephone conversation on the evening of 17 October 2023:[102]
[102] Trial counsel's affidavit (appeal exhibit R1).
111. During the 6 October 2023 Meeting and the 17 October 2023 phone call I advised the Appellant of what I thought the 'pros' of giving evidence were:
111.1 the jury would get to directly hear the Appellant's version of the events;
111.2 the jury would hear from the Appellant as to her knowledge (or lack of knowledge) of the possession items from the Ridgewood Address (more than the search warrant video interview);
111.3 that evidence of the Appellant's alternate accommodation could be tendered through the Appellant.
112. During the 6 October 2023 Meeting and the 17 October 2023 phone call I advised the Appellant what I thought the 'cons' were:
112.1 the Appellant would have to endure cross-examination for the State as to:
(a) the contents of the Notebook;
(b) her relationship with Mr Padberg;
(c) her connection to the Ridgewood Address; and
(d) the contents of the Appellant's phone download.
112.2 we would have to find another means of adducing evidence as to the Appellant's alternative accommodation; and
112.3 evidence of the toxic relationship between the Appellant and Mr Padberg would then have to come from other witnesses.
We also find that the appellant understood that the choice as to whether she would give evidence or not was hers to make. That understanding is reflected in the appellant's written acknowledgement signed on 19 October 2023:[103]
I understand that it is my choice alone, and I understand if I do not give evidence, I am not directly able to share my version of events[.]
[103] See also appeal ts 53.
That understanding was also reflected in the evidence given by the appellant in cross-examination about her telephone conversation with trial counsel on the evening of 17 October 2023:[104]
[104] Appeal ts 80 - 81.
Do you recall telling [trial counsel] on that phone call that you do not want to give evidence?---I agreed I wouldn't give evidence, yes. (emphasis added)
But not only did you agree, that was your wish, wasn't it?---It wasn't my wish at all, but it was what he said would be wise.
Yes. My very next question, so [trial counsel's] advice was for you not to give evidence?---Yes.
Would you accept he was quite firm in that advice?---What do you mean?
I will phrase that another way. We've talked about pros and cons?---He was sure of it.
Do you accept that [trial counsel's] advice said the cons outweighed the pros?---Yes.
And it wasn't a close thing, the cons - I'm not quoting him, but the gist of his advice was that the cons significantly outweighed the pros?---That's what he told me, yes.
So that was the advice that he gave?---Yes.
You accepted that advice?---I had no other choice.
Well, you acted upon that advice, didn't you?---I didn't give evidence.
What we draw from this passage is that the appellant understood that the choice was hers to make, but felt that there was only one good choice in light of the advice she had received.
Disposition of conviction appeal
In light of the above factual findings, it cannot be concluded that the appellant's right to give evidence in her defence was effectively foreclosed by the receipt of incorrect legal advice. The appellant was advised, and understood that, the choice of whether to give evidence or not in her own defence was hers to make. She was also advised, and understood, that there were 'pros and cons' to giving evidence, and the nature of those advantages and disadvantages.
Advice to the effect that the disadvantages of giving evidence outweighed the advantages was forensically sound in the circumstances.
The advantage of having the jury hear her denials was to be assessed in light of the fact that the jury already had evidence of those denials in the search video. It was also to be assessed in light of the exonerating evidence which Mr Padberg would give.
The advantage of being able to adduce evidence of the appellant regularly staying at other accommodation was qualified by the fact that Mr Padberg indicated he would give that evidence, that an accommodation receipt had been tendered through Detective Mears and that all of the receipts in the appellant's possession related to a period ending a month or more prior to the execution of the search warrant on 25 March 2021.
The advantage of being able to adduce evidence of Mr Padberg's alleged domestic violence towards the appellant was qualified by the fact that the defence case was that the appellant did not know about or have possession of the items located in the search of 25 March 2021. If the appellant gave evidence in accordance with her instructions, she would say that she did not know the items were in the Ridgewood house and had nothing to do with Mr Padberg's drug dealing enterprise. The domestic violence to which the appellant was subjected would not make it more likely that she did not know about the drugs. Domestic violence might have been relevant if the appellant was contending that she knew about the items and was coerced into participating in Mr Padberg's drug dealing. But that defence of duress (which would have faced very considerable obstacles) was not consistent with the appellant's instructions to trial counsel.
A significant disadvantage of the appellant giving evidence was the implausibility and vagueness of her account of the text messages and how the notebook entries were made. If the appellant gave that evidence before a jury, it was unlikely to be believed and likely to be damaging to the defence case. If the jury assessed the appellant to be a dishonest witness, then her evidence would be likely to undermine rather than support Mr Padberg's exonerating evidence.
In these circumstances, the ground of appeal that a miscarriage of justice occurred as a result of the failure of trial counsel to adequately advise the appellant in relation to the election not to give evidence is not established.
Sentence appeal
The sole ground of appeal in the sentence appeal is that the total effective sentence of 6 years 6 months' imprisonment infringed the first limb of the totality principle.
Circumstances of the offending
The trial judge found that the appellant was jointly in possession with Mr Padberg of the items the subject of the charges of which the appellant was convicted. This involved the possession of a total of 644.08 g of methylamphetamine, $139,490 in cash and two unlicensed firearms, one of them modified.[105] The trial judge made findings as to the location of the items consistently with the prosecution case described at [13] above.[106]
[105] Trial ts 883.
[106] Trial ts 881 - 883.
The trial judge found that the appellant was living with Mr Padberg at the Ridgewood house and that Mr Padberg was conducting a drug dealing enterprise from that house. Mr Padberg was the director of that enterprise and sourced the drugs. The appellant was aware of that drug dealing enterprise and participated in it by facilitating drug transactions from the Ridgewood house.[107] She was engaged with Mr Padberg in drug dealing activity from the time he was released from custody in August 2020 after serving a previous sentence for drug offences. He was an experienced drug dealer who operated the enterprise from his home which he had modified for that purpose. The appellant's role was subordinate to Mr Padberg's, but the appellant was involved in drug transactions.[108]
[107] Trial ts 881.
[108] Trial ts 883.
The trial judge was not able to make findings as to the extent to which the appellant benefitted financially from Mr Padberg's drug dealing. However, the appellant was financially dependent upon him and benefitted from the drugs Mr Padberg gave the appellant for her own use and the lifestyle which his drug dealing afforded. The presence of $22,000 of gemstones in Brian's bedroom was consistent with the appellant, or at least her son, being the beneficiary of the proceeds of drug dealing.[109]
[109] Trial ts 884.
The trial judge found that, at the time of the execution of the search warrant on 25 March 2021, the appellant was looking to make a break from Mr Padberg and trying to find alternative accommodation.[110] She was trying to escape the relationship at the time of her arrest and would not have participated in the offending but for being in a relationship with Mr Padberg.[111] The trial judge found that the appellant's relationship with Mr Padberg was abusive and dysfunctional, and the trial judge appeared to accept that the appellant was coerced by Mr Padberg or enjoined by fear to participate in the offending.[112]
Personal circumstances
[110] Trial ts 883 - 884, 886.
[111] Trial ts 888 - 889.
[112] Trial ts 886.
The appellant was 37 years old at the time of the offending.[113] Her parents separated when she was 12 years old. The appellant's mother re-partnered when the appellant was 13 or 14. The mother's new partner was physically abusive towards the appellant. The appellant was subjected to other traumatic incidents in her adolescence which it is unnecessary to set out in these reasons. The appellant remained in contact with her mother. The appellant's father died when she was 27, and she has no contact with her two brothers.[114]
[113] Trial ts 881.
[114] Trial ts 885 - 886.
The appellant's son was 14 years old at the date of sentence. The appellant was his sole carer, but had made arrangements for his care in anticipation of receiving a sentence of imprisonment. Brian suffered a serious orthopaedic injury in a fall from a scooter in 2023, and had required a great deal of care from the appellant in the months prior to sentencing.[115]
[115] Trial ts 889.
The appellant left school at age 15 and worked in administrative roles until her early twenties. Spinal injuries sustained in car accidents when the appellant was 18 and 22 left her with chronic pain and depression and made it difficult to return to work.[116] The appellant continued to experience chronic neck pain at the date of sentence.[117]
[116] Trial ts 886.
[117] Trial ts 887.
The appellant had three significant relationships. The first, with Brian's father, began when the appellant was 20 and lasted eight years. It ended as a result of criminal conduct by Brian's father. The second relationship commenced when the appellant was about 33 and ended when she was about 36 years old. It was marred by drug use, infidelity and domestic violence. The third relationship was with Mr Padberg and commenced in 2020. The judge appeared to accept that, after his release from prison, Mr Padberg relapsed into drug use and became violent towards the appellant, and that the appellant remained at the Ridgewood house because she had nowhere else to go. The appellant also experienced the trauma of the home invasion at the house when Mr Padberg was in custody.[118]
[118] Trial ts 886.
The appellant has a history of substance abuse, being introduced to alcohol, cannabis and methylamphetamine in her teenage years. She was exposed to illicit drugs and alcohol in an environment where substance abuse was normalised. The trial judge accepted that she had abstained from methylamphetamine use since April 2022, when she was released from custody on conditional bail after her bail had been revoked following the return of a positive urine sample.[119] While the appellant had been convicted of a series of traffic offences (including driving under suspension), she had not previously been convicted of drug offences or sentenced to imprisonment.[120]
[119] Trial ts 887.
[120] Trial ts 885.
At the time of sentencing, the appellant was not remorseful but had removed herself from drug use and persons associated with drug use. She had taken positive steps towards rehabilitation.[121]
The totality principle
[121] Trial ts 890.
McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[122]
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)
[122] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
The following general principles are also well established:[123]
1.Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
2.The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
3.When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
4.The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.
Sentencing for drug offences
[123] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The general principles of sentencing offenders for serious drug offences are well established.[124] The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation (or generally) and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant.
Appellant's submissions
[124] See, for example, Jneid v The State of Western Australia [2018] WASCA 67 [81].
The appellant's counsel submits that the total effective sentence of 6 years 6 months' imprisonment, while it might not be uncommon for this kind of offending, was unreasonable or plainly unjust in the circumstances of this case given:
(a)the appellant's subordinate role in the enterprise;
(b)the fact the appellant was in that role because of the dysfunctional and abusive relationship with Mr Padberg;
(c)the appellant did not have any prior relevant convictions;
(d)the mitigating effect of the impact of the appellant's past trauma and the personal circumstances referred to by the trial judge; and
(e)matters which had been the subject of an abandoned ground of appeal.
Disposition of sentence appeal
As the ground of appeal alleges inferred error, it is unnecessary to further summarise the approach taken by the trial judge.
The appellant participated in a large-scale commercial drug trafficking operation, from which she financially benefited, and did so over a period of many months. The offending included possessing a trafficable quantity of methylamphetamine for which the maximum penalty was life imprisonment. The offending was aggravated by the possession of firearms together with the large quantities of cash and drugs. As this court has previously noted, the possession of a firearm during drug dealing activities carries with it an inherent risk that the firearm may be used to inflict very serious injury or even death.[125]
[125] See, for example, Clarke v The State of Western Australia [2018] WASCA 190 [73].
The appellant did not plead guilty to the offences and so did not obtain the mitigating benefit of a reduction in sentence under s 9AA of the Sentencing Act 1995 (WA). There were several very significant mitigating factors present, as noted above. However, the importance of general deterrence moderated the significance of those mitigating factors as sentencing considerations. Further, the total effective sentence received by the appellant was less than would be expected for offending of this kind in the absence of those mitigating factors.
The parties referred to various cases dealing with similar kinds of offending. However, neither party submitted that any of those cases supported a conclusion that the total effective sentence imposed in the present case was unreasonable or plainly unjust. It is unnecessary to summarise those cases in these circumstances.
In our view, the total effective sentence of 6 years 6 months' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, after having regard to all relevant circumstances including the significant mitigating factors referred to above. The appeal against sentence does not have a reasonable prospect of succeeding. Consequently, leave to appeal should be refused and the appeal should be dismissed.
Orders
CACR 73 of 2024: conviction appeal
The appellant requires a four-month extension of time to commence the conviction appeal. The delay has not been adequately explained and, as the ground of appeal is not arguably established, there would be no utility in granting an extension of time. As the reception of the evidence was necessary for the determination of the appeal, we would grant the parties leave to adduce the additional evidence referred to above but otherwise dismiss the appellant's various applications to adduce additional evidence in the appeal.
In these circumstances, the appropriate orders in the conviction appeal are:
1.The appellant's application in an appeal filed on 16 July 2025 is granted to the extent that it seeks leave to adduce exhibits 1, 2, 3, 4 and 13 of the longer affidavit sworn by the appellant on 16 July 2025 as additional evidence in the appeal.
2.The appellant's application in an appeal filed on 22 July 2025 is granted to the extent that it seeks leave to adduce the statutory declaration of the appellant dated 21 July 2025 as additional evidence in the appeal.
3.The appellant's applications seeking leave to adduce additional evidence in the appeal are otherwise dismissed.
4.The respondent's application in an appeal filed on 10 April 2025, seeking leave to adduce additional evidence in the appeal, is granted.
5.The appellant's application for an extension of time in which to commence the appeal is refused.
6.Leave to appeal is refused on the sole ground of appeal.
7.The appeal is dismissed.
CACR 110 of 2024: sentence appeal
The appellant also requires an extension of time to commence the sentence appeal. The five-month delay in commencing the sentence appeal has not been adequately explained, and the lack of merit in the sentence appeal means that there would be no utility in granting an extension of time.
In these circumstances, the appropriate orders in the sentence appeal are:
1.The appellant's application for an extension of time in which to commence the appeal is refused.
2.Leave to appeal is refused on the sole ground of appeal.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
5 SEPTEMBER 2025
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