Susta v The State of Western Australia - [2021] WADC 66

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   SUSTA -v- THE STATE OF WESTERN AUSTRALIA [2021] WADC 66
CORAM:   PRIOR DCJ
HEARD:   31 MAY 2021
DELIVERED          :   28 JULY 2021
FILE NO/S:   IND 2367 of 2020
BETWEEN:   BARBARA DENISE SUSTA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Application for change of pleas - Pleas entered in the Perth Magistrates Court - Application refused

Legislation:

Criminal Code 1913 (WA), s 417(1)
Criminal Procedure Act 2004 (WA), s 99
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 9AA

Result:

Application refused

Representation:

Counsel:

Applicant	:	Ms A Antoine
Respondent	:	Ms K Webster

Solicitors:

Applicant	:	Perrella Legal
Respondent	:	The Director of Public Prosecutions

Case(s) referred to in decision(s):

Birch v The State of Western Australia [2017] WASCA 19
Lim v Bateman [2001] WASCA 307
Pearman v The State of Western Australia [2021] WASCA 106
Snook v The State of Western Australia [No 2] [2015] WASCA 29
SYO v The State of Western Australia [2020] WASCA 202
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Williams [2018] WADC 68
Windie v The State of Western Australia [2012] WASCA 61

PRIOR DCJ:

Background

On 15 September 2020, Barbara Denise Susta (the accused) was charged with the following offences:
1.PE 42684/20 - Possessing a prohibited drug with intent to sell or supply, namely methylamphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (Charge 1); and
2.PE 42685/20 - Possessing stolen or unlawfully obtained property, contrary to s 417(1) of the Criminal Code 1913 (WA) (Charge 2).
The State case is that at 4.06 pm on 15 September 2020 the accused was stopped by detectives on Stirling Highway, Claremont when she was driving a black Mercedes vehicle (the vehicle). A male person was in the front passenger seat. The detectives conducted a search of the vehicle and occupants. The accused declared she had methylamphetamine in the cargo pocket of her pants and stated it was for personal use. She indicated there were more drugs in the vehicle. An amount of 23.5 g of methylamphetamine was located in a clear zip lock bag in her left cargo trouser pocket.
Police further located 13.7 g of methylamphetamine in a plastic bag on the floor of the front passenger side of the vehicle. The accused admitted she had handled this package and that it would likely contain her DNA.
In the centre console of the vehicle, police found empty clip seal bags and working digital scales with traces of methylamphetamine. The accused admitted handling the scales.
When the police searched the accused, they found $450 in her right cargo trouser pocket and $2,290 inside her handbag.
On 26 November 2020, being the third appearance of the accused in the Magistrates Court, the accused, represented by her lawyer Trevor Mark Andrews, entered a plea of guilty to both charges.
The charges were committed to the District Court for sentence mention on 29 January 2021 and on that date the charges against the accused were listed for sentence on 22 April 2021.
On 19 April 2021, the accused filed an application in the District Court to change her pleas of guilty to pleas of not guilty (the application). The application is pursuant to s 99(5) of the Criminal Procedure Act 2004 (WA) (the CPA) and not under this court's power to allow a change of plea under its inherent (common law) jurisdiction to prevent a miscarriage of justice.[1]
[1] The State of Western Australia v Williams [2018] WADC 68; Birch v The State of Western Australia [2017] WASCA 19; ts 40.
The application is opposed by the State of Western Australia.

The law

Section 99 of the CPA applies where:
(a)an accused pleads guilty to an indictable charge before a court of summary jurisdiction (the lower court); and
(b)the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and
(c)the accused is subsequently charged with the charge in an indictment.
The accused has not yet entered a plea in the District Court, to the charges on the indictment.
Section 99(3) and s 99(4) of the CPA will only apply if s 99 (5) does not apply.
Section 99(5)(b) of the CPA provides as follows:
(5)Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if -
(b)having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
In SYO v The State of Western Australia[2] the Court of Appeal stated:
[2] SYO v The State of Western Australia [2020] WASCA 202.
159The court's power under s 99(5)(b) of the CPA is engaged if the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the alleged offence.
160The expression 'as to' specifies the required connection between the material misunderstanding, on the one hand, and the offence alleged in the prosecution notice, on the other. The expression, in its ordinary meaning, denotes 'with regard or respect to'. Accordingly, the material misunderstanding in s 99(5)(b) must have been with regard to or with respect to the offence alleged in the prosecution notice.
161The expression 'material', within the context of the expression 'a material misunderstanding' in s 99(5)(b), connotes that the understanding was 'significant' or 'influential' in the accused's decision to enter the plea of guilty to the alleged offence before the lower court.
…
165An accused person may enter a plea of guilty whether or not the accused believes that he or she has committed the alleged offence. As Dawson J observed in Meissner v The Queen
It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence …
166Although the entry of a plea of guilty constitutes an admission, as a matter of law, of all the elements of the offence, the entry of the plea does not necessarily constitute an admission, as a matter of fact, that the accused has a consciousness of guilt in relation to the offence. The entry of a plea of guilty does not necessarily indicate that the accused believes that he or she has in fact committed the offence.
(footnotes omitted)
A misapprehension as to the seriousness of the offence and the penalty the offender/accused might receive is not a material misunderstanding as to the charge, the plea or the purpose of the proceedings.[3]
[3] Windie v The State of Western Australia [2012] WASCA 61 [29].
Ordinarily, where a person is represented by counsel, the court is entitled to rely upon counsel having explained to the accused, the legal and factual matters necessary to allow a defendant to make an unequivocal plea of guilty.[4]
[4] Lim v Bateman [2001] WASCA 307 [41].
The onus is on the accused to establish that the plea was entered as a result of a material misunderstanding. This is not an easy thing to do in circumstances where the accused had legal representation at the time of entering the plea.[5] Unless the accused can discharge this onus, it follows that the application made pursuant to s 99(5)(b) of the CPA must fail. The standard of proof is the balance of probabilities.
[5] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103].
In Snook v The State of Western Australia the Court of Appeal stated:
104Attempts to change a plea are approached by the courts with caution bordering on circumspection:  Liberti v The Queen (1991) 55 A Crim R 120. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice: Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.
105A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment.  Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty:  Meissner v The Queen.  The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure.
106An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt.  For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial.  The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred:  Meissner v The Queen [157] Dawson J, see also Wilhelm v The State of Western Australia [2013] WASCA 188, Mazza JA [51].

The evidence

At the hearing of the application on 31 May 2021, the court received and heard the following evidence:
1.Affidavits of Michele Princi sworn 14 May 2021, and 20 May 2021 (Exhibits 1 and 2);
2.Affidavit of the accused sworn 14 May 2021 (Exhibit 3);
3.Affidavit of Trevor Mark Andrews sworn 14 May 2021. Mr Andrews was the accused's previous counsel. This affidavit annexes the transcript of proceedings in the Perth Magistrates Court on 26 November 2020 when the accused pleaded guilty (Exhibit 4);
4.Sworn evidence of the accused at the hearing on 31 May 2021; and
5.Sworn evidence of Mr Andrews at the hearing on 31 May 2021.

The accused

In the accused's affidavit, she states she first contacted her counsel Mr Andrews at the time of her arrest on 15 September 2020. Mr Andrews then represented her at her first Perth Magistrates Court hearing and bail was set. Her bail conditions were varied at a hearing on 7 October 2020 and a further hearing was set for 4 November 2020.
The accused in her evidence stated that one to two days before the 4 November 2020 hearing she met with Mr Andrews at his office. She stated the meeting was not for very long, maybe 15 minutes. Mr Andrews gave her advice and suggested her best option was to head towards a 'fast track plea' to reduce the length of the sentence she would receive. He advised her there was no point proceeding to trial as it looked like her and the man in the vehicle were 'doing business together'. He advised her she should adjourn the hearing on 4 November 2020 to get evidence from the police.
The accused instructed Mr Andrews at that meeting she was merely providing the man, an old friend, a lift in her vehicle. She instructed Mr Andrews the 23.5 g of methylamphetamine found in her trouser pocket was for her personal use. She instructed Mr Andrews she had a large methylamphetamine habit and felt embarrassed about her habit. The accused further instructed Mr Andrews the methylamphetamine in the clip seal bag in the front passenger footwell was not hers and she had nothing to do with it. The cash in her possession was money her stepfather had given her on 14 August 2020 for a renovation and design job she was due to start. She advised her stepfather could confirm this in a statutory declaration.
The accused said Mr Andrews advised her nobody would believe that all the methylamphetamine she admitted to possessing was for her use because of the amount and she should plead guilty.
Mr Andrews advised the accused to obtain a statutory declaration from her stepfather to use in sentencing. He explained to her the burden of proving the money the police found in her possession was legitimately obtained was on the accused. He also explained to her the scales and clip seal bags found in the vehicle would cause her difficulty in relation to whether the money found was legitimately obtained. Mr Andrews advised the accused to plead guilty to Charge 2. The accused said Mr Andrews was adamant that it would not change the situation and she would not get the money back even though she had a legitimate reason to possess it. He said if she took the charges to trial, she would lose the advantage of the 'fast track' option.
The accused said she felt defeated and it felt like Mr Andrews could not be bothered doing any work for the case. In cross‑examination, the accused said she felt confused and stressed. She said she felt rushed and did not really understand.
The accused stated she obtained a statutory declaration from her stepfather and provided it to Mr Andrews. This statutory declaration is annexed to the accused's affidavit and is generally consistent with the evidence in the affidavits of Mr Princi.
In her affidavit, the accused said she has no recollection of meeting Mr Andrews between meeting him on 4 November 2020 and her appearance at Perth Magistrates Court on 26 November 2020 where she was represented by Mr Andrews. In cross-examination, the accused accepted she may have met with Mr Andrews a second time, probably on 19 November 2020.
The accused claims she was never shown any evidence from the police by Mr Andrews.
The accused stated in her evidence that before her appearance in court, Mr Andrews reiterated his advice that pleading guilty was the best thing for her. He advised her to enter 'fast track' pleas of guilty and obtain pre-sentence and psychological reports. He emphasised to her the effect if she lost the benefit of a 'fast track' guilty plea on her sentence.
The accused said she trusted Mr Andrews would do the best for her.
The accused accepted in her evidence she followed Mr Andrews' advice and entered pleas of guilty to both charges before Perth Magistrates Court on 26 November 2020. Her charges were then adjourned for sentence mention on 29 January 2021.
The accused said in re-examination that on the day she entered her pleas of guilty she felt confused, uneasy and did not really understand why she was pleading guilty. She accepted ultimately she pleaded guilty because she used Mr Andrews in the past and trusted whatever advice he gave to her.
The accused claims that when she pleaded guilty, she was not thinking about what she was pleading guilty to but thinking about not being away from her 5‑year‑old daughter for too long.
The accused claims Mr Andrews had not gone through the elements of each offence in detail before she entered her guilty pleas. She had never been charged with possessing a prohibited drug with intent to sell or supply before, and she claims she did not understand that by her guilty plea, she was accepting she had supplied or sold methylamphetamine to anyone. She believed she was pleading guilty to the amount of methylamphetamine in her pocket being for her personal use only.
In her affidavit the accused states the methylamphetamine found in her pocket was for personal use. She sets out her history of methylamphetamine use and level of usage. She described when and why she purchased the amount of methylamphetamine found in her pocket.
The accused describes in her affidavit who the passenger in her vehicle was and how he came to be in her vehicle on 15 September 2020. She states the bag of methylamphetamine found on the floor of the vehicle belonged to the passenger. The male passenger had given the bag to her and asked her to put it somewhere. The accused gave it back to him. He then threw the bag onto the floor when the police stopped the vehicle.
The accused described in her evidence where the methylamphetamine in her pocket came from and why she was carrying it. She could not remember there being a bag of small clip seal bags in the centre console of her vehicle. The accused claims that the scales found were not hers and she had not seen them before.
In relation to the cash the police found in her pocket and handbag, the accused states it was given to her by her stepfather the day before. It was to purchase supplies for a decorating and interior design job she was doing for a real estate agency in Newcastle Street, Perth. She completed the job after she was granted bail and was paid for her work.
After the accused's appearance at the District Court for the sentence mention hearing on 29 January 2021, the accused stated in her affidavit she spoke to a friend and her ex-partner who raised concerns with her as to her guilty pleas. She then received advice from another lawyer about changing her pleas. She instructed that lawyer to file an application to change her pleas. The lawyer then advised her in April 2021 he was unable to act for the accused on the change of plea application. The accused then engaged her present lawyers to apply to change her pleas.

Trevor Mark Andrews

Mr Andrews is the principal of his own criminal law firm which has operated since 1997. He has practised in criminal law for about 24 years. He had provided legal advice to the accused previously.
In Mr Andrews affidavit he states in September 2020 the accused instructed him to act for her on both charges. In his evidence before the court, Mr Andrews stated on the day the accused was arrested, he was telephoned by her and gave her advice on her right to silence.
Mr Andrews testified that he had his first conference with the accused at his office before the accused's first court appearance on 2 November 2020.
At this conference the accused instructed Mr Andrews that the methylamphetamine found in her trouser pocket was for her own personal use. She instructed Mr Andrews that the cash she was found with was given to her by a relative. Mr Andrews suggested he obtain the video evidence of her search and arrest before the next court appearance. Mr Andrews said he obtained this evidence and viewed it.
Mr Andrews gave evidence that he had a subsequent conference with the accused at his office on 19 November 2020. He had a diary note of this meeting. At the conference on 19 November 2020 Mr Andrews said he gave the accused his firm view that if she proceeded to trial on the basis of possession only, she had virtually zero chance of winning the case on that basis. Mr Andrews said the accused was desperate to avoid a period of imprisonment and being separated from her daughter.
Mr Andrews gave evidence that the accused raised with him that the police had invited her to cooperate and give them information. He then advised her of the pros and cons of cooperating with the authorities.
Mr Andrews said he advised the accused that she was guilty of the offence even if she intended to supply some of the methylamphetamine in her possession to another person and use the balance personally. Mr Andrews said he also advised her of the operation of the schedule of the Misuse of Drugs Act and he was of the view she understood his advice on this. Mr Andrews advised the accused that for sentencing, the law differentiated between possession of prohibited drugs with intent to sell and possession of prohibited drugs with intent to supply. He said that if she conceded she may have shared some of the methylamphetamine found in her possession to like-minded friends and the State accepted this she may have a slim chance of avoiding a sentence of immediate imprisonment when combined with other mitigating factors such as an early plea of guilty and cooperation with authorities.

Mr Andrews said the accused attributed ownership of the methylamphetamine found on the floor of the vehicle to the male in the vehicle. She admitted she may have touched these drugs but denied ownership of them.
Mr Andrews advised the accused of a potential maximum discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA) for a fast track plea of guilty. He further advised that pleading guilty was acceptance of the elements of the offence but not necessarily the factual circumstances. He advised her that she should make use of the discount.
The accused instructed him that the money was not the proceeds of the sale of methylamphetamine. Mr Andrews confirmed the accused always maintained these instructions. Mr Andrews advised the accused it would be difficult to discharge the onus of proof that the money was not unlawfully obtained given the quantity of methylamphetamine found in her trouser pocket. He told the accused that a plea of guilty to Charge 2 was not necessarily an acceptance that the money was proceeds of drug sales but merely she accepted she could not prove the money was legitimately acquired.
Mr Andrews gave the accused advice that the relative may not be considered an independent witness and the limited utility of having a trial for Charge 2 only. He advised that a concurrent sentence with the Charge 1 sentence was likely if she pleaded guilty to Charge 2 and considering the relatively modest amount of money found on her.
Mr Andrews advised that once he gave the accused his very robust views about defending Charge 1 on possession only, she conceded reluctantly that she may have shared some of the methylamphetamine with her friends. Mr Andrews said he would not have enabled her to plead guilty but for that concession on her part.
Mr Andrews said that the accused did not do or say anything which indicated she did not understand his advice. He said with the benefit of his robust advice, the accused somewhat begrudgingly but unequivocally, indicated that she would be willing to plead guilty to Charge 1 on the basis that she might have supplied some of the methylamphetamine to her friends.
Mr Andrews gave evidence that when the accused saw him, she was ordinarily accompanied by a friend who he gained the impression the accused trusted and was closely associated with.
In cross-examination Mr Andrews estimated the conferences he had with the accused on 2 and 19 November 2020 took as much time as was required and he did not feel time pressured. He estimated each conference lasted about 30 minutes and they were not brief meetings. Mr Andrews was adamant there were two conferences and they had been diarised in his diary.
Mr Andrews had no recollection of the accused providing him with or showing him a copy of Mr Princi's statutory declaration dated 23 November 2020. I note this declaration was sworn after Mr Andrews had engaged in both of his conferences with the accused.
Mr Andrews said in cross-examination that it was likely he had a conversation with the accused on 26 November 2020 as to what was going to happen before the accused's matter was called on in court. He did not accept that the accused did not know what she was pleading guilty to when she pleaded guilty.
Mr Andrews in cross-examination said he would not have allowed the accused to plead guilty if she was adamant that she was not prepared to even concede that she may have shared some of the drug. He would not in effect force the accused or enable her to plead guilty to something that she patently denied. He accepted the accused's decision‑making was influenced by the degree of trust she placed in his advice.
When it was put to Mr Andrews in cross-examination that he was mistaken the accused conceded to having shared any of the methylamphetamine with anyone he answered as follows:[6]
No. As I say, I'm not in the business of railroading clients into a ‑ a plea or a position that they steadfastly don't want to accept. I have conceded, as I have, that I was enthusiastic about her accepting responsibility, because I thought it would be in her best interests and I thought that it would be proven, ultimately, anyway. I explained to her that if she was convicted after trial, it would likely be on the basis of commerciality and she face a very substantial term of imprisonment. As I say, she was ‑ she never embraced the concession, she ‑ it was a reluctant acceptance, if you like, but it was an acceptance, nonetheless. And consistent with her instructions, I reaffirmed those before we went into court and there was no hesitancy in her pleading to the charge, as put, which plainly, included an element of selling or supplying.
[6] ts 33 - ts 34.
On 26 November 2020 the accused entered fast track pleas of guilty when Mr Andrews appeared with her as her counsel at Perth Magistrates Court before the chief magistrate.
Mr Andrews said his instructions from the accused were terminated in February 2021. His file in relation to the matter was then immediately delivered to another lawyer, Mr Terry Dobson.

Michele Princi

The accused is Mr Princi's stepdaughter.
Mr Princi swore in his first affidavit that on 14 September 2020 the accused asked him for $3,500. He stated he has always supported her financially. Mr Princi withdrew $3,500 from an ATM in cash to give to her and the accused went to his house and collected the $3,500 on 14 September 2020.
In Mr Princi's subsequent affidavit, he corrected his previous evidence that he did not withdraw the $3,500 from an ATM as he already had the cash at his house in his wardrobe from a $400,000 withdrawal made from a NAB bank account on 17 August 2020. The $400,000 was deposited into his NAB account on 14 August 2020 from the sale of his business 'Princi Small Goods'.
Mr Princi stated that some of the $400,000 he withdrew was deposited into a joint bank account he held with the accused's mother. He kept some of the cash at his house in his walk-in wardrobe. He said he often keeps cash at his house and has anywhere between $5,000 and $10,000 at the house at a time.

Analysis

The accused had had previous experience with the courts and criminal justice system in Western Australia before she pleaded guilty to both charges. She had been previously convicted for possession of a prohibited drug and unlawful possession of firearms. She has not previously been charged with possession of a prohibited drug with intent to sell or supply to another. Mr Andrews has previously advised and represented the accused in relation to her past criminal charges. The accused had only ever used Mr Andrews as her lawyer previously. The accused trusted Mr Andrews' advice who is an experienced criminal lawyer.
I accept Mr Andrews gave the accused robust advice about defending each charge.
The transcript of the accused's appearance at Perth Magistrates Court on 26 November 2020 indicates she was unequivocal when she told the chief magistrate that her pleas were guilty to the charges. Mr Andrews was present in court representing her when she entered the guilty pleas.
I accept in relation to Charge 1 the accused always maintained her instructions that she only possessed the 23.5 g of methylamphetamine found in the clear zip lock bag in her cargo trouser pocket. Whether the accused possessed the 13.7 g of methylamphetamine found in a plastic bag on the floor of the front passenger side of the vehicle was only a factor relevant to sentence and if necessary, could have been resolved with a trial of the issues. The trial of issues would have been about how much methylamphetamine the accused possessed with intent to sell or supply to another.
Of the two charges against the accused, Charge 1 was the most serious offence. If convicted of Charge 1 it is likely the accused would receive a sentence of immediate imprisonment unless the sentencing judge was satisfied exceptional circumstances existed.[7] This is even if she was sentenced only for possession with intent to sell or to supply to another the 23.5 g of methylamphetamine found in the accused's cargo pants. I accept Charge 2 was a lesser offence and likely to be the subject of a concurrent sentence.
[7] See Pearman v The State of Western Australia[2021] WASCA 106 and The State of Western Australia v Andela [2006] WASCA 77 [17].
Where there are conflicts in evidence between the accused and Mr Andrews, I prefer the evidence of Mr Andrews. Mr Andrews was consistent throughout his evidence and unshaken in cross‑examination. I do not accept Mr Andrews' memory of his interaction with the accused has been impacted by the passage of time or running a busy legal practice.
The evidence of the accused as to whether she met with Mr Andrews once or twice and the lack of detail as to what Mr Andrews advised her, causes me concern as to her credibility and reliability as a witness.
On the evidence of Mr Andrews, I am satisfied the accused met twice for conferences with him in November 2020 to discuss her two charges and to discuss her proposed pleas. I accept at the second conference Mr Andrews gave the accused robust advice about the merits of pleading not guilty.
I do not accept Mr Andrews as an experienced legal practitioner would have met with the accused once only, for approximately 15 minutes to provide the accused with advice. The detail of what Mr Andrews gave evidence about as to the accused's instructions and his advice to her is inconsistent with one 15‑minute conference occurring. I am satisfied on the evidence of Mr Andrews that at the second conference he had with the accused on 19 November 2020, he advised the accused about the elements of both offences, the benefits of fast track pleas of guilty and the likely sentences the accused would receive upon pleas of guilty or after a trial.
I am satisfied the accused accepted Mr Andrews' advice. She then instructed Mr Andrews she would plead guilty to both charges. She confirmed those instructions with Mr Andrews on 26 November 2020 shortly before she pleaded guilty in court.
I am not satisfied on the evidence of the accused that she has an accurate or reliable memory of how many conferences she had with Mr Andrews, the extent of advice Mr Andrews provided to her and what her instructions were to Mr Andrews upon receiving his advice.
Although the accused has provided evidence to confirm her instructions to Mr Andrews as to where she says the money found in her possession came from, I am satisfied she pleaded guilty to Charge 2 on the basis of Mr Andrews' advice referred to in [50] above.

Conclusion

Having considered all the evidence, I am not satisfied on the balance of probabilities that when the accused pleaded guilty to the two charges in Perth Magistrates Court on 26 November 2020, her pleas were entered as a result of a material misunderstanding on her behalf. The accused understood the nature of both charges she was pleading guilty to, that by pleading guilty what elements to each charge she was admitting and what was the purpose of the proceedings.
I find the accused had trusted and accepted Mr Andrews' robust advice to plead guilty to each charge. She then acted in accordance with Mr Andrews' advice. When the accused pleaded guilty, she understood the elements of each charge and what she was pleading guilty to. Her prime concern was avoiding a sentence of imprisonment or reducing the length of a sentence of imprisonment.
The application to allow the change of pleas to both charges on the indictment is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
26 JULY 2021