Tasovac v The State of Western Australia

[2015] WASCA 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   TASOVAC -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 24

CORAM:   McLURE P

NEWNES JA
MAZZA JA

HEARD:   15 DECEMBER 2014

DELIVERED          :   5 FEBRUARY 2015

FILE NO/S:   CACR 29 of 2014

CACR 30 of 2014

BETWEEN:   ANITA TASOVAC

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :HERRON DCJ

File No  :IND 271 of 2013

Catchwords:

Criminal law - Leave to appeal against conviction - Attempting to pervert the course of justice - Errors in admission and application of evidence - Incompetence of counsel - Errors in directions to jury - Unreasonable verdict - Misuse of police protocols - New or fresh evidence - Turns on own facts

Leave to appeal against sentence - Manifest excess - Parity

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Evidence Act 1906 (WA)

Result:

Applications to adduce additional evidence refused
Leave to appeal against conviction and sentence refused
Appeals dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Dudzik v The State of Western Australia [2012] WASCA 195

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Murphy v The State of Western Australia [2013] WASCA 178

Pearce v The State of Western Australia [2014] WASCA 156

R v Birks (1990) 19 NSWLR 677

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Tasovac v Lawson [2009] WASC 394

1. McLURE P:  This is an application for leave to appeal against conviction and sentence.

2. The appellant was convicted after trial of one count of attempting to pervert the course of justice, contrary to s 143 of the Criminal Code (WA), by having Raina McKibbin falsely represent to a police officer that she had stolen various items of equestrian equipment and that the false representation was material to an appeal against conviction for a charge of theft by Nikole Tasovac. The offence was committed between 1 January 2010 and 26 June 2012.

3. On 23 January 2014 the appellant was sentenced by Heron DCJ to 3 years' imprisonment.

4. The appellant has applied for leave under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) to adduce additional evidence in both appeals.

5. The appellant, who was legally represented at trial, is representing herself in these appeals.  She has reviewed the material in the possession of her counsel and has reached her own assessment of how the defence should have been run.

6. Leave to appeal is required for each ground of appeal (s 27(1)).  After an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding (s 27(2)). 

7. I am not satisfied that any of the grounds of appeal in the conviction appeal and the sentence appeal has a reasonable prospect of succeeding.  Accordingly, leave to appeal must be refused and the appeals are to be taken to have been dismissed (s 27(3)).  These are my reasons for the refusal of leave.

The prosecution case

1. In June 2009, the appellant's sister, Nikole Tasovac (Nikole), was found guilty after a trial in the Magistrates Court of one count of stealing, contrary to s 378 of the Code.  The offence related to a number of items of equestrian equipment stolen on or about 14 March 2008 from a business called Evolution Equestrian, owned by Rebecca Wiltshire and Anna Johnson.

2. On 23 June 2009 Nikole commenced an appeal against her conviction (the first appeal).  The first appeal was heard by Hall J on 6 November 2009 and dismissed on 17 December 2009:  Tasovac v Lawson [2009] WASC 394.

3. On 18 May 2011, Nikole commenced an appeal to this court from the decision of Hall J dismissing her appeal against conviction (the second appeal).  The offence committed by the appellant related to the second appeal.

4. The factual background to the offences is as follows.  On 14 March 2008 Ms Wiltshire had a stall at a horse show at Harmony Park in Brookdale.  Early in the evening she was talking to some people who were interested in purchasing horse bridles and horse reins, one of whom was Nikole Tasovac.  They were discussing a particular brand of bridle made by David Quayle and Ms Wiltshire brought out a box of them to show around.  The bridles were distinctive, having embossed on them the initials 'DQ'.

5. In the belief that the venue would be locked overnight, Ms Wiltshire simply covered her merchandise with cotton sheets.  When she returned the next morning, she realised a number of items were missing, including:

   -the box of 'DQ' bridles;

   -equestrian socks;

   -five stocks (being a type of collar worn by riders);

   -seven browbands (decorative items worn over bridles on the horse's forehead).

6. Ms Wiltshire reported the theft to police.  On 25 April 2008 Ms Wiltshire attended a horse show at Claremont showgrounds.  She noticed a horse wearing a purple browband which looked exactly like one of the stolen browbands.  Ms Wiltshire had commissioned this browband to be made in a specific colour and style by a woman in New South Wales, Kim Rutter.  Ms Rutter made all seven of the stolen browbands.

7. Ms Wiltshire recognised the woman riding the horse with the purple browband as Nikole.  She took photographs of the horse and went to police.

8. On 17 June 2008 police executed a search warrant at West Swan Road, Henley Brook where Nikole and the appellant resided.  The search was recorded on video.  Police seized various items including ten browbands, two DQ bridles and one set of heavy padded reins.  One of the browbands was the purple browband which Ms Wiltshire had seen at the Claremont showgrounds.

9. During the search the appellant was shown two red browbands.  She told police she had purchased them in 2004 at the Grand Nationals in Sydney.  The State case was that this was untrue.

10. Not all of the property which had gone missing from the Evolution Equestrian stall at Harmony Park was recovered in the search of the Henley Brook property.  Ms Wiltshire was still missing one browband, all of the stocks and a quantity of bridles and reins.

11. The appellant was a veterinarian.  In 2010 she was at the Swan Veterinary Hospital in Midland.  One of the nurses at the hospital was Rhonda McKibbin (Rhonda).

12. The appellant and Rhonda became friends.  The appellant lent her money from time to time and they used to socialise with each other on occasions at Rhonda's home in Wooroloo.

13. At one visit the appellant paid to Rhonda in Wooroloo in 2010, she confided in Rhonda that her sister had been accused of stealing.  She did not say her sister had been convicted.  The appellant told Rhonda her sister was innocent and Rhonda was sympathetic.  The appellant suggested to Rhonda that Rhonda's daughter, Raina McKibbin (Raina) then aged 14, could go to police and admit to being the thief who stole from Ms Wiltshire's stall in Harmony Park in March 2008.  The appellant thought her sister would get off the charge and Raina would most likely be let off with a juvenile caution.  Rhonda's former de facto partner, Bruce Ladhams, was present at Rhonda's home in Wooroloo when the discussion with Rhonda took place.  The appellant spoke to Raina about this plan and Raina agreed to it.

14. When the appellant next visited Rhonda's house she brought equestrian equipment which she told Rhonda and Raina she had bought off the internet.  The appellant told Rhonda and Raina that they looked like the stolen items and that Raina should hand them in to police, saying they were all that was left of the goods that she had stolen.

15. On 18 August 2010 Rhonda and Raina went to the Midland police station.  Raina handed to Constable Hall the items the appellant had given to her.  Rhonda informed Constable Hall that she had found the items under Raina's bed and that her daughter had confessed to her that she had found them in the car park at a horse show she had once attended.  Constable Hall issued a receipt for two bridles, a number of sets of reins, three stocks, a browband and a sock.

16. On 18 August 2010 or the following day Rhonda telephoned the appellant to tell her that she and Raina had done what had been planned.  The appellant then telephoned her sister's lawyer, Tarnya Griffin, and advised her she had heard a rumour that some of the property alleged to have been stolen by her sister had been handed in to police. 

17. Ms Griffin telephoned the Midland police station and spoke to Constable Jarrad Doherty.  Constable Doherty commenced inquiries and located the property that had been handed in by Raina.  As part of his inquiries, Constable Doherty arranged for Ms Wiltshire to come and view the property.  He decided to interview Raina.

18. On 4 November 2010 Raina attended the Midland police station and was interviewed, in the presence of Rhonda, by Detective Doherty.  Raina told Constable Doherty what Rhonda and the appellant had told her to say which was that she had attended a horse show some time ago; she had found a box of items she thought had been abandoned and had taken the box home and hidden it from her mother; her mother had recently discovered it and insisted that Raina hand it in to police; although there was only one browband, originally there had been more but she had cut them up to make other things.  Raina was given a juvenile caution.

19. On 23 November 2010 the appellant accompanied her sister Nikole and Nikole's lawyer, Ms Griffin, to the Midland police station.  Constable Doherty showed them the property handed in by Raina.  Based on information provided by the appellant, Ms Griffin told Detective Doherty that neither Nikole nor the appellant had had any dealings with the girl who had handed in the property or her mother.

20. In the second appeal (commenced on 13 May 2011) Nikole appealed against her conviction based on fresh evidence having come to light, being Raina's confession to the theft of the property stolen from Evolution Equestrian in March 2008.

21. On 7 March 2012 the original investigating officer, Detective Ben Lawson, re-opened the inquiry into the theft from Evolution Equestrian.  Detective Lawson arranged for the stocks handed in by the McKibbins to be shown to the maker of the stocks, Debbie Wood, and for the browband handed in by the McKibbins to be shown to the maker of the browband, Kim Rutter.  Ms Rutter gave evidence that she made the six browbands which Nikole had been convicted of stealing and the seventh browband handed in by the McKibbins.  Debbie Wood gave evidence that she handmade the five stocks handed in to police by the McKibbins and that she supplied stocks of that kind to Evolution Equestrian.

22. After showing these items to Ms Rutter and Ms Wood, Detective Lawson reinterviewed Raina and Rhonda on 7 May 2012.  Raina and Rhonda confessed to having lied to police about the equestrian equipment handed in to police and advised of the appellant's involvement.

23. On 8 May 2012 Rhonda told the appellant in a telephone conversation that she and Raina had confessed all to police.  The appellant asked to meet Rhonda at Lakelands.  Rhonda declined.

24. On 10 May 2012, the appellant swore an affidavit which was filed in the second appeal.  In that affidavit the appellant said that in 2008 or 2009 she worked with a lady called Rhonda at the Swan Veterinary Hospital and was of the belief that Rhonda's full name was Rhonda Ladhams; approximately three months previously, Rhonda and two young girls attended the appellant's veterinary clinic in Edgewater to purchase items; they spoke for about half an hour and Rhonda said to her words to the effect that it was her daughter who had stolen the horse property that Nikole had been convicted of stealing; the appellant got very upset and screamed at Rhonda about why she had only just told her as she (the appellant) knew the information would assist Nikole's case; she told Rhonda never to contact her again and Rhonda left the clinic; up until this time the appellant had not realised that the Rhonda she had worked with at Swan Veterinary Hospital was Rhonda McKibbin or that her daughter had stolen the property that Nikole was found guilty of stealing; the next contact from Rhonda was on 7 May 2012 when she had a missed call on her mobile phone; the appellant returned the phone call at about 9.00 am on 8 May 2012 and Rhonda told the appellant her phone was tapped and that she had spoken to police and told them she knew, and had worked for, the appellant; she recalled protesting Nikole's innocence of the charges when she worked with Rhonda but that was the extent of their discussions about the matter.

25. Around June 2012 the focus of the police investigation shifted from investigating the original stealing of which Nikole had been convicted to the appellant's involvement.  The appellant was interviewed by police on 26 June 2012.

26. The State called Rhonda, Raina, Ms Wiltshire, Ms Rutter, Ms Wood, Mr Ladhams (who overheard what was discussed between the appellant and Rhonda about the plan), Ms Griffin (Nikole's lawyer who gave evidence that the appellant informed her in late 2010 that equestrian goods had been handed in to the police and that the appellant had not had any dealings with Raina or Rhonda), Tanya Elliott (the manager of the Swan Veterinary Hospital from at least 2005) and police officers Doherty, Lawson and Hall.

The defence case

1. The appellant gave evidence consistent with her affidavit of 10 May 2012.  She denied that there was any plan, hatched at her instigation or at all, in which she was involved for Raina to falsely represent to police that Raina had stolen the equestrian equipment.  The appellant denied providing any equipment to Raina and Rhonda. 

2. The defence also called Elena Newcombe, a veterinary nurse who had also worked at Swan Veterinary Hospital.  She gave evidence that she attended the Harmony Park horse show in 2008 and bumped into a woman who said her name was Rhonda and who was a nurse at Swan Veterinary Hospital.  The defence also called character evidence from Duncan Hargest and Christine Dawe.

3. The defence case was that, based on Ms Newcombe's evidence, the jury should draw the inference that Rhonda and Raina were at the Harmony Park horse show in March 2008 and that what Raina told police in 2010 was in fact the truth.  The defence case also highlighted, and relied on, inconsistencies in the evidence of Rhonda, Raina and Mr Ladhams, the bad character of Rhonda and Mr Ladhams and the appellant's prior good character.

Nikole's conviction

1. Nikole was charged with two separate offences and was found guilty of one.  Charge 1 related to two light blue horse browbands that were alleged to be the property of Sharon Robinson.  Nikole was acquitted of charge 1.  Charge 2 related to six browbands, two DQ bridles, a set of heavy padded reins and two pairs of horse socks alleged to be the property of Ms Wiltshire and another trading as Evolution Equestrian.  On charge 2, the magistrate convicted the appellant in respect of all of the property except the horse socks.

2. The appellant gave evidence at Nikole's trial.  She said she had purchased two of the six browbands at the Grand Nationals in Sydney in 2006.  The appellant also gave evidence that she had purchased two DQ bridles for Nikole in 2003 and obtained a copy of a receipt in 2008 and instructed the sales assistant to write on the receipt '2 x DQ bridles'.

3. In Nikole's trial, the prosecution called two employees from the business from which the appellant claimed to have purchased the bridles.  Michael Johnson confirmed that the receipt had been reprinted in June 2008 and referred to 'strapping' to the value of $774.50.  Mr Johnson said that whilst strapping could include bridles, halters, lead ropes, and reins, his business had never stocked DQ bridles.  Alicia Sams‑Hays gave evidence that the receipt contained her handwriting which read '2 x DQ bridles, one pony, one full'.  Ms Sams‑Hays had no recollection as to why she had written those words on the receipt or when she had done so.

Grounds of appeal against appellant's conviction

1. The appellant contends first, that there was a miscarriage of justice because of (i) the incompetence of defence counsel and errors in (ii) the way evidence was led or admitted, (iii) the way the rules of evidence were applied and (iv) the trial judge's summing up.  Second, that the verdict, having regard to the evidence, is unreasonable.  Third, that there was a misuse of police protocols.  Finally, the appellant relies on new or fresh evidence said to undermine the evidence given at trial.

Miscarriage -incompetence of counsel

1. The legal principles on this issue are well‑known.  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.   The appellant has to demonstrate that the conduct of counsel caused a miscarriage.

2. As Gleeson CJ said in R v Birks (1990) 19 NSWLR 677:

   Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.  The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress … the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).

3. An apparently rational decision made by the accused's counsel in the course of trial will not result in a miscarriage of justice merely because it may appear then, or later on appeal, that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused:  TKWJ v The Queen (2002) 212 CLR 124 [74] ‑ [77].

4. This claim relates to the failure to rely on the additional evidence the subject of ground 4.  I will return to this allegation in that context.

Miscarriage - errors in way evidence led or omitted

1. The appellant claims that the prosecution led evidence in relation to Nikole 'which did not reflect the true circumstances'.  In particular, she claims the items seized during the execution of the search warrant at the Henley Brook property 'were not items stolen from Evolution Equestrian, rather all the items that resembled possible stolen products'.  She also contends that exhibit 15 did not reflect 'the true identification of the items seized during the search'.

2. The seized items were summarised in a police exhibits log that became exhibit 15 at trial.  It is correct that not all of the items referred to in exhibit 15 were the subject of the stealing charges against Nikole or of which she was convicted of stealing.

3. However, exhibit 15 was relevant and admissible in the appellant's trial.  An issue at trial was whether the items handed to police by the McKibbins was property stolen from Evolution Equestrian in March 2008.  It was relevant to know that the items handed to police by the McKibbins were not located by police on, or seized from, the Henley Brook property. 

4. The exhibits log that became exhibit 15 was not disclosed as part of the State brief (ts 237).  However, on the issue of prejudice defence counsel admitted he had seen a number of background documents and the search warrant DVD and doubted he would object to the admission of the document, but wanted to look at it and then take instructions.  There was a short adjournment to enable that to occur.  On recommencement, defence counsel advised the court that the matter had been resolved (ts 239).  Quite properly, defence counsel did not object to the tender of exhibit 15 (ts 241).

5. The appellant also contends that exhibit 15 is inaccurate when compared with an incident report which is Annexure 1 in the appellant's application to adduce additional evidence.  Unlike exhibit 15, Annexure 1 separates and identifies the individual items seized by police.  A close examination of the two documents reveals no relevant or material discrepancy.

1. A second complaint relates to prosecution evidence concerning the equipment handed over by the McKibbins to police on 18 August 2010.  That evidence was clearly relevant and admissible.  The appellant relies on what she describes as 'three different seized item logs modified by Detective Ben Lawson and no original documentation from the initial officer that seized the property, that being Senior Constable Hall'.  The three documents to which the appellant refers were not tendered in evidence at trial and are Annexure 10 in the application to adduce new evidence.  The documents are property receipts.

2. The equestrian equipment handed to Midland police by the McKibbins became exhibits 1 ‑ 7 at trial.  The items were identified by, and tendered through, Detective Lawson without objection.  Rhonda also identified the items handed to police (ts 64 ‑ 66) as did Constable Hall (ts 117 ‑ 119).  It was no part of the defence case at trial that there was any lack of correspondence between what the McKibbins handed over and what was tendered in evidence at trial.

3. Moreover, as the trial judge correctly noted in his summing up (ts 449) there was really no issue that the equestrian equipment handed to Midland police by the McKibbins, being exhibits 1 ‑ 7, was stolen from Ms Wiltshire at the Harmony Park horse show in March 2008 (ts 449).  No issue was taken because it was central to the defence case that the equipment handed over by Raina was in fact stolen by her from the horse show in Harmony Park in March 2008.  Defence counsel understood that without this option, the equipment can only have been supplied to the McKibbins by the appellant.

4. I have examined the Annexure 10 property receipts to which the appellant refers, which appear to have been downloaded by Detective Lawson from the police computer system on different dates, being 9 November 2012, 22 August 2013 and 11 November 2013.  The first two reports are identical in content and identify 13 items of property and the third report identifies 14 items.  The latter includes a storage bag not included in the first two reports (as to which, see ts 117 and MF1 8).  I have seen nothing in the new evidence to throw any doubt on the correctness of counsel's decision not to challenge the evidence relating to the identity of the items handed to police by the McKibbins.

Miscarriage - way rules of evidence applied

1. The appellant claims that all of the evidence in relation to the socks stolen from Evolution Equestrian (the evidence of Ms Wiltshire and Detective Lawson, exhibit 15 and exhibit 12 (a photograph of two pairs of socks)) gives the erroneous impression that 'the one sock surrendered by the McKibbin's can then be assumed to be the balance of items stolen from Ms Wiltshire'.

2. Three pairs of 'PK' long socks were stolen from Evolution Equestrian in March 2008. Nikole was charged with, but acquitted of, stealing two pairs of PK long socks. Hall J in the first appeal noted that there was nothing particularly distinctive about the socks that enabled Ms Wiltshire to positively identify them as those that were stolen on 14 March 2008 [20]. Nikole said she had purchased them from the Perth Royal Show.

3. Exhibit 5 at trial was a PK International diamond patterned sock.  Ms Wiltshire gave evidence that not all of the stolen PK International socks had been recovered (ts 163).

4. The evidence relating to the stolen socks was both relevant and admissible, a PK long sock having been handed to police by the McKibbins. 

Miscarriage -summing up

1. This is a claim that the trial judge 'deduced … that the appellant lied about her use of computers at Swan Veterinary Hospital, therefore, implying the appellant was aware of Rhonda McKibbin's surname'.

2. The claim is without merit.  In his summing up to the jury, the trial judge summarised the State case.  As part of that summary, he said:

   The State says the accused lied when she said she didn't either keep or access clinical records and didn't access the computer.  The State says the accused deliberately lied about these matters to support or justify her evidence she didn't know Rhonda McKibbin's surname.

   As I've earlier said, it is for you to decide whether the accused lied about these matters and if so what is the significance, if any of those lies and whether it affects your assessment of the accused's credibility (ts 443).

3. The trial judge did not expressly or impliedly adopt or support the proposition that was part of the State case. 

Whether verdict unreasonable

1. The primary basis for the claim that the verdict is unreasonable is the appellant's assertion that the prosecution had to prove beyond reasonable doubt that the items handed to police by the McKibbins on 18 August 2010 was the balance or remainder of items not seized from the Henley Brook property during the execution of the search warrant on 17 June 2008.  There is also a suggestion that the State had to establish how the appellant sourced the items provided by the McKibbins to police.  There is no merit in either claim. 

2. The defence formally admitted that Nikole was convicted of stealing equestrian equipment from Ms Wiltshire and that the first appeal had been dismissed.  There was evidence of what had been seized from the Henley Brook property (exhibit 15) and evidence from Ms Wiltshire as to what had been stolen in March 2008 and what had not been recovered.  It was clear from the evidence that not all of the property stolen from Ms Wiltshire had been located by police in the search of the Henley Brook property.  Indeed, that was the effect of the defence cross‑examination of Ms Griffin (ts 179). 

3. Detective Lawson also gave a detailed description of the items stolen from Ms Wiltshire in 2008, including the quantity of each item, based on the incident report which is Annexure 8 in the appellant's application to adduce additional evidence (ts 234 ‑ 236).  As already noted, the individual items of equipment provided by the McKibbins to police were tendered in evidence.

4. It is difficult to precisely identify the gravamen of the appellant's 'balance of equipment' complaint.  It appears there is a numerical aspect, to the following effect:  exhibit 15 identifies 19 items seized from the Henley Brook property; Annexure 8 refers to 22 items stolen from Ms Wiltshire; the McKibbins handed over 13 items; there was no evidence at trial of the number of items stolen by Nikole; therefore it was impossible for the prosecution to prove that the equipment handed over by the McKibbins to police was the balance of the equipment stolen from Ms Wiltshire.  That was not how the defence case was run, for very good reason.  The State, defence counsel and the jury were aware that Nikole's conviction related to a subset of the equestrian equipment seized by police from the Henley Brook property.  No competent defence counsel, knowing the details of Nikole's conviction, would advocate the proposition for which the appellant contends.  It would not, contrary to the appellant's claim, discredit the evidence of Ms Wiltshire, Ms Rutter, Rhonda, Raina and Mr Ladhams and nor would it have enhanced the defence case in the ways suggested by the appellant.

5. On the State case, the purpose of the appellant's plan was to cast reasonable doubt on the propriety of Nikole's conviction by Raina admitting to the offence and supplying items which could be taken for the stolen items that had not been seized by police from the Henley Brook property.  That did not require the prosecution to prove that the items handed to police by the McKibbins were in fact stolen from Ms Wiltshire in March 2008 or were the exact balance of the unrecovered stolen items, neither more nor less.  That was understood by defence counsel as is evident from the cross‑examination of Ms Wiltshire (ts 174).  However, the State case was that most if not all of the items were in fact stolen from Ms Wiltshire at the Harmony Park horse show in March 2008.  As already noted, it was also part of the defence case which was why, as the trial judge notes in his summing up, that was not really an issue at trial.

6. The appellant also relies on a miscellany of other matters in support of her claim that the verdict is unreasonable.  She relies on a breach of protocol by Constable Hall, the police officer who took possession of the equestrian equipment from the McKibbins on 18 August 2010.  Constable Hall gave evidence that the items were unsealed and unsecured within the police station for around 29 days before police protocols were complied with.  However, there was no direct or indirect challenge by the defence at trial to the evidence relating to the type and extent of the property handed by the McKibbins to police.  Any protocol breach by itself leads nowhere and certainly not to a miscarriage of justice.

7. The appellant also asserts there was no evidence that the browband forming part of the equestrian equipment handed to police by the McKibbins was the property of Evolution Equestrian.  This claim is also unmeritorious.  The browband in question (exhibit 4), handmade by Ms Rutter, is described by her at trial as red, white and gold with red rosettes and straight down flags into a point (ts 129, 138).  Ms Rutter refers to exhibit 4 as 'the red browband' (ts 129).  She supplied her handmade browbands to Evolution Equestrian and one other outlet in Queensland.  Annexure 8 (the detailed list of items stolen from Ms Wiltshire in March 2008) refers to seven browbands, three of which are described as red. 

8. The appellant relies on Annexure 2 in her additional documents which appears to be a document from Nikole's trial.  It is an order form dated 23 January 2008 for the supply of equipment by Ms Rutter to Evolution Equestrian (the 2008 order form).  The appellant claims exhibit 4 is not on the 2008 order form.  That claim is not borne out by the document itself which refers to a number of red browbands, including one with a straight flag which was red with white satin.  The document was not put to Ms Rutter by defence counsel for a good forensic reason.  Further, Ms Wiltshire gave evidence that all seven of the browbands stolen from her were made by Ms Rutter (ts 157) and that exhibit 4 was one of them (ts 162). 

9. The matters on which the appellant relies to challenge the evidence relating to exhibit 4 ([pars 35 ‑ 43]) fall well short of raising any arguable claim that it was not one of the seven handmade browbands stolen from Ms Wiltshire in 2008.

10. The appellant also seeks to challenge the reliability of the evidence of Ms Wiltshire as to precisely what was stolen by reference to the terms of the search warrant for the Henley Brook property (Annexure 6), which refers to one DQ bridle.  Ms Wiltshire said in an out of court statement that, after viewing the property seized from the Henley Brook property, another DQ bridle had been stolen without her realising it at the time (Annexure 7).  At trial, Ms Wiltshire gave evidence that the bridle which is exhibit 6 was also a David Quayle bridle even though his name was not stamped on the product (ts 167).  She said it looked very much like the product Equestrian Evolution would have (ts 167).  Nikole was convicted of stealing two DQ bridles.  Ms Wiltshire gave evidence that they recovered two DQ bridles but there was one bridle still outstanding (ts 164).  However, Annexure 8 lists only two DQ bridles (I assume stamped with the initials).  The discrepancies were not put to the witness because they ran counter to the defence case and are in any event insignificant.

11. The appellant also seeks to challenge Ms Wiltshire's evidence in relation to the reins.  She says:

    Rebecca Wiltshire testified that the reins were David Quayle reins due to their high quality.  However Nikole … was seized and convicted of one pair of David Quayle reins that were initially stolen thus she has incorrectly identified the reins, and what was remaining were two pairs of Equestrian Evolution reins, thus indicating she is unable to correctly identify her own products.  The McKibbins had three sets of reins, thus one pair being David Quayle and two pairs being Equestrian Evolution.  Thus there exists an excess of one pair of reins.

12. Exhibit 7 is described as three sets of padded reins, which Ms Wiltshire said resembled DQ products in quality and stitching (ts 168).  Annexure 8 records two EE padded reins (item 4) and one DQ padded heavy rein (item 7).  Thus Ms Wiltshire had reported three sets of stolen padded reins.  Nikole had been convicted of stealing one set of heavy padded reins and the McKibbins handed over three sets of padded reins which makes four, an excess of one.  This was not raised in cross‑examination.  It falls well short of establishing any arguable miscarriage of justice.

13. Annexure 8 also refers to three PK International long socks and two Eurostar socks.  The point made by the appellant is that the McKibbins did not hand over the balance of the equipment stolen from Ms Wiltshire in March 2008.  This is of no moment, for the reasons discussed above.

14. The appellant then turns her attention to the stocks (neck bands), being exhibits 1, 2 and 3.  Ms Wiltshire reported the loss of five stocks, two of which remained unaccounted for as the McKibbins had handed over three stocks.  That numerical discrepancy is the basis for an assertion by the appellant that Ms Wiltshire made an untrue statement when she said in effect that the three stocks handed to police by the McKibbins were identical to the ones that were stolen from her (ts 167).  The witness was not answering a different question about whether all the stocks had been recovered.

15. The appellant also relies on the evidence of Detective Doherty who confirmed that in February 2011 he showed Ms Wiltshire the items handed in by the McKibbins who said they were similar to the items stolen from her but she was unable to say with any certainty that they were or were not the ones stolen (ts 277).  She had a second viewing in October 2011 and was less equivocal.  This was not the subject of cross‑examination because of the reasonable forensic decision not to take issue with the fact that exhibits 1 ‑ 7 were in fact stolen from Ms Wiltshire in 2008.  Moreover, Ms Wiltshire's evidence was supported by Ms Rutter and Ms Wood.

16. The appellant also relies on the Annexure 10 property receipts which I have dealt with under ground 1.  The appellant also contends that the item quantities in the property receipts do not correlate with what the appellant had viewed with her sister and Ms Griffin in November 2010.  She relies on an extract from the affidavit of Ms Griffin dated 5 August 2011 in the second appeal (Annexure 11).  In fact, with one minor exception Ms Griffin's description corresponds with exhibits 1 ‑ 7.  The exception relates to the number of reins.  Ms Griffin said there were four sets of reins.  It is difficult to say precisely how many reins are contained in exhibit 7.  According to Ms Wiltshire, there were three sets of reins and one rein that was probably missing from a bridle (ts 168).  Mrs Griffin's evidence at trial does not support the appellant's claim.  Moreover, there was no challenge to Ms Griffin's evidence that exhibits 1 ‑ 7 appeared similar to what she inspected at the Maylands police station (ts 178).

17. The appellant also relies on an incident report prepared by Detective Doherty (Annexure 12) based on information from an unnamed source on 4 November 2010 about a 'POI who attended a horse show with her mother on 14 March 2008 at Harmony Park in Brookdale'.  This incident report dovetails with the concocted story the subject of the charge against the appellant.  It is of no evidentiary weight.  Defence counsel did not cross‑examine Detective Doherty about the incident report for objectively compelling forensic reasons.

18. Finally, the appellant relies on uncertainty in the description of the first item of equipment in the property receipts (Annexure 10) for the items handed to police by the McKibbins which states '2 x bridle or nose bands'.  The matter was not clarified with any precision by Constable Hall in her evidence.  However, the defence accepted at trial that exhibits 1 ‑ 7 inclusive comprised the equestrian equipment the McKibbins handed to police.  It was an objectively reasonable forensic decision in the circumstances.

Misuse of police protocols

1. The appellant suggests, wrongly, that s 46 of the Evidence Act 1906 (WA) relating to the proof of receiving charges is applicable to the McKibbin handover of equestrian equipment to police. It is of no relevance.

2. The appellant complains of the following matters: the failure to immediately seal the McKibbin items; the failure to DNA test or fingerprint the McKibbin items; permitting the appellant, Nikole and Ms Griffin to handle the McKibbin items on 23 November 2010; the failure to search the McKibbin property for additional stolen equipment; the failure to interview neighbours about whether Raina went horse riding; an allegation that Rhonda's confession in her statement dated 4 July 2012 was based on misleading comments by Detective Lawson suggesting that the equipment she surrendered was the balance of the horse equipment stolen from Ms Wiltshire in March 2008; and the appellant was not given her rights under s 28 of the Criminal Investigation Act 2006 (WA).

3. It is unnecessary to deal with these complaints individually.  None of these matters featured in any, or any significant, way in the appellant's defence at her trial.  There are compelling, objective forensic reasons for not doing so.  There is no merit in this ground.

New or fresh evidence

1. New evidence is evidence which was available at trial or which could, with reasonable diligence, have been discovered.  Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered.

2. All of the additional material on which the appellant relies is new, not fresh, evidence.  Where an accused has been convicted, an appellate court will not allow an appeal on the basis of new evidence unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted:  Lawless v The Queen (1979) 142 CLR 659, 675 ‑ 676; Pearce v The State of Western Australia [2014] WASCA 156 [25] ‑ [27].

3. I have already referred to Annexures, 1, 2, 6, 7, 8, 10, 11 and 12.  Those documents do not, individually or collectively, come anywhere close to raising a doubt as to the correctness of the appellant's conviction.

4. The appellant relies on other additional documents ('new evidence') to support her evidence or challenge facts found by the trial judge in sentencing (which are detailed in the sentence appeal).

5. First, that Rhonda did not call the appellant on 18 or 19 August 2010 to tell her that she and Raina had taken the equestrian equipment to police.  The appellant refers to telephone records of Rhonda and herself on those dates but does not annex them.  She relies on Rhonda's out of court statement dated 7 May 2012 which provides no material support for the claim (Annexure 14).

6. Second, that she made no second call to Rhonda on 8 May 2012.  She relies on Rhonda's telephone records for that date (Annexure 15) but not her own.  That challenge depends upon an assumption that the appellant rang the particular number to make the second call, she having already been told by Rhonda that she had confessed to police.

7. Third, the appellant refers to inconsistences between Rhonda's notes of their first telephone conversation on 8 May 2012 (Annexure 16) and Detective Lawson's notes and his affidavit on that subject (Annexures 17 and 18).  The appellant asserts that Rhonda fabricated her notes.

8. Fourth, the appellant relies on a handwritten note (Annexure 19) said to have been made by a police officer recording that Rhonda said the appellant may only know her by her first name, which statement was scored through.

1. Fifth, the appellant challenges the trial judge's finding that the appellant told the McKibbins the details of the location from which the equestrian equipment was stolen.  She relies on a statement in a memorandum dated 9 February 2011 written by Detective Doherty (Annexure 20) that in November 2010 the McKibbins agreed, when pressed, that the place where the items were stolen was Harmony Park in Brookdale.

2. Sixth, there is a challenge to the trial judge's finding as to the friendship between the appellant and Rhonda.  The appellant relies on inconsistencies in out of court statements made by Rhonda on 7 May 2012 (Annexure 21), 4 July 2012 (Annexure 23) and Rhonda's evidence at trial (ts 56, 76).  These inconsistencies were relied on by the defence at trial (ts 76).

3. Seventh, the appellant challenges the trial judge's finding that the plan was the appellant's idea not Rhonda's.  She refers to Rhonda's record of interview on 7 May 2012 (Annexure 21) and Rhonda's statement of 4 July 2012 (Annexure 23).  This was also relied on by the defence at trial (ts 81 ‑ 84).

4. Eighth, the appellant challenges the trial judge's finding that the appellant had told the McKibbins that Raina would get a juvenile caution.  The appellant says that is inconsistent with Rhonda's record of interview on 7 May 2012 (Annexure 21) and Raina's statement dated 21 August 2013 (Annexure 22).

5. Ninth, the appellant contends that a person called Christopher Crawford, who was in a relationship with Rhonda at relevant times and did not give evidence at trial, could have undermined the trial judge's conclusion that the appellant had fabricated the Edgewater Veterinary Clinic incident.  She relies on a statement of Mr Crawford (Annexure 24), his phone records for September 2011 (Annexure 25) and a statement dated 6 November 2012 of police officer James Ayling (Annexure 26) that Mr Crawford contacted police about the appellant and the McKibbins on 7 March 2012.  The additional evidence is incapable of undermining the finding.

6. Tenth, the appellant relies on a denial by Raina in her statement of 7 May 2012 (Annexure 27) that she had ever ridden horses which was inconsistent with her evidence at trial.  The appellant also identifies inconsistencies between Raina's statements in Annexure 27 and a further statement made on 21 August 2013 (Annexure 22).  The appellant goes through Raina's statements arguing the correctness of a number of propositions.

7. Finally, the appellant challenges Detective Lawson's evidence as to when he got involved with the investigation relating to herself and the McKibbins.  The appellant relies on an incident report running sheet (Annexure 28) which she says contradicts Detective Lawson's evidence at trial.  The appellant asserts, with no proper evidentiary foundation, that Detective Lawson coerced Rhonda into shifting the blame onto the appellant and was responsible for the firming up of Ms Wiltshire's equivocal statement concerning whether the equipment handed to police by the McKibbins was stolen from her.

8. The appellant also seeks to rely on what she described as 'recent information from reliable sources' to make allegations concerning Rhonda.  That does not qualify as admissible hearsay evidence and must be ignored.

9. Insofar as the annexures are relied on as new evidence in the conviction appeal, they are incapable of establishing that the appellant is innocent and incapable of raising such a doubt as to satisfy me that the appellant should not have been convicted.  Further, the defence case at trial reflected objectively reasonable forensic judgments based on all the material disclosed by the prosecution.

10. Based on my consideration of the evidence adduced at trial and all of the material on which the appellant now seeks to rely, I am satisfied that it was proper for the jury, as a matter of fact and law, to convict the appellant of the offence.  

11. I would refuse the application to adduce additional evidence in the conviction appeal and refuse leave to appeal on all grounds.

Appeal against sentence

1. The sentencing judge, who was also the trial judge, made the following findings of fact.  The appellant met Rhonda at the Swan Veterinary Hospital in Midland in 2010.  They became good friends.  They socialised outside of work and occasionally met at Rhonda's house in Wooroloo.  The appellant became aware of Rhonda's financial difficulties and from time to time loaned her money.

2. The appellant was present when police executed the search warrant at the Henley Brook property and seized various items of equestrian equipment the property of Ms Wiltshire which had been stolen from a horse show at Harmony Park, Brookdale in March 2008.  Nikole was charged and convicted in respect of that stolen equipment.  However, not all the equipment which was stolen from Harmony Park was recovered by police in the execution of the search warrant.

3. The appellant spoke to Rhonda about Nikole having been charged and convicted of stealing the equestrian equipment and protested her innocence.  In or about August 2010 the appellant spoke with Rhonda at her house in Wooroloo and asked Rhonda whether her daughter, Raina, whom the appellant knew to be aged 14 years, would be prepared to tell police that she had stolen equestrian equipment from the Harmony Park horse show, being the same type or similar equipment of which Nikole had been convicted of stealing.

4. After Rhonda agreed, the appellant spoke with Raina and asked her to lie to police and tell them she had found the horse equipment in the Harmony Park car park, had taken the equipment home without letting her mother know, had hidden the equipment under her bed and that it was found by Rhonda when she was cleaning.

5. The appellant told Rhonda and Raina that if Raina said she had stolen the equipment, the appellant anticipated she would only be given a juvenile caution because of her age.  Raina agreed to the appellant's request.

6. Shortly afterwards the appellant delivered certain equestrian equipment to Rhonda and Raina and told them that was the equipment Raina should take to police and tell them she had stolen it.

7. The equipment provided by the appellant was three stocks, one browband, bridles, reins and a sock.  That equipment was also stolen from the Harmony Park horse show and was the property of Ms Wiltshire.  Rhonda and Raina did not know that.

8. The appellant provided further background detail to Raina and Rhonda for the purpose of enabling Raina to convincingly lie to police.  That background information was necessary to give credibility to the lie to be told by Raina.  The appellant told Raina to tell police that she had found the equipment later that night in the Harmony car park because that fitted what the appellant knew to be the true circumstances in which the equipment had been stolen.  The appellant also told Raina the horse show was a stallion horse show and that there were only a few people in attendance.

9. Raina, accompanied by Rhonda, attended at the Midland police station on 18 August 2010 and advised police that she (Raina) had stolen equestrian equipment she found at an equestrian show and that Rhonda had only recently found it beneath her bed.  The equestrian equipment Raina handed to police was the equipment the appellant delivered to her.

10. Soon after the McKibbins had attended the Midland police station, either later that day or the next day, Rhonda telephoned the appellant and informed her of what Raina had told police.  The appellant then telephoned her sister's lawyer, Ms Griffin, and told Ms Griffin she had heard that some of the stolen equipment from the Harmony Park horse show had been handed in to police.

11. Ms Griffin then telephoned the Midland police station and arrangements were made for Ms Griffin, the appellant and Nikole to attend the station to view the equipment.

12. Raina and Rhonda attended the Midland police station on 4 November 2010.  In a video‑recorded interview Raina told the police the substance of what she had said on 18 August 2010.  Police issued Raina with a juvenile caution.

13. On 23 November 2010 the appellant, Nikole and Ms Griffin attended the Midland police station and was shown the property handed in by the McKibbins.  Ms Griffin was informed by Detective Doherty that the equipment was handed in by Raina McKibbin accompanied by her mother Rhonda.  Ms Griffin asked the appellant whether she knew Raina or Rhonda McKibbin and the appellant said she did not.  Ms Griffin then informed the police that neither Nikole nor the appellant had any dealings with the McKibbins.

14. The second appeal commenced on 18 May 2011 based on alleged new evidence that had come to light.

15. Nothing further happened until police re‑interviewed Rhonda and Raina on 7 May 2012. They were separately interviewed and each interview was recorded.  Each admitted that what they had told police in August and November 2010 was false and that they had lied to police at the appellant's request because of a plan arranged or hatched between the appellant and Rhonda for the purpose of supporting Nikole's ongoing court proceedings against her conviction for stealing other equipment from the Harmony Park horse show in 2008.

16. Immediately after Rhonda was re‑interviewed by police on 7 May 2012 she telephoned the appellant.  The appellant returned her call on 8 May 2012.  Rhonda told the appellant that she had told police she had lied when she had told them in 2010 that Raina had stolen the equipment.  The appellant attempted to persuade Rhonda not to change her statement and later rang back and spoke to one of the McKibbin children.  Rhonda refused to speak to the appellant because she was on bail with a condition that she not speak to the appellant.

17. When the appellant spoke with Rhonda on 8 May 2012 the appellant asked Rhonda to meet her at Lakes Roadhouse for the purpose of discussing what Rhonda had just told police.

18. As soon as it became apparent to the appellant that Rhonda was not prepared to maintain the lies, the appellant arranged to swear her affidavit of 10 May 2012 in the second appeal.

19. The appellant swore that affidavit after she became concerned that the plan she had concocted with Rhonda for Raina to lie to police for the purpose of aiding or assisting further proceedings on behalf of Nikole was unravelling and the appellant was about to be found out.

20. The appellant's affidavit was drafted in such a way as to anticipate the consequences which would follow from Rhonda and Raina admitting to police that they had lied in 2010 and to provide a basis upon which the appellant could deny their allegations.  The sentencing judge continued:

    In particular, I find that your allegations in your evidence at trial, and contained in paragraphs 12 and 13 of your affidavit regarding the content of a conversation with Rhonda … at your Edgewater Veterinary Clinic in March 2012, in which you allege Rhonda told you that Raina had stolen the equipment, which is the first you had heard of it, to be a deliberate fabrication designed to provide a basis for you to later deny what you anticipated would happen from Rhonda and Raina McKibbin's admissions and to deflect attention from yourself and onto Rhonda and Raina McKibbin (ts 502).

21. The sentencing judge went on to identify all of the respects in which the appellant's 10 May 2012 affidavit was false.  That included all matters of substance.

22. The trial judge found that the offence was premeditated, that the deception had occurred over nearly two years and that it had caused the diversion of police resources and created false public records (the appellant's 10 May 2012 affidavit and Ms Griffin's affidavit, which include material from the appellant).  The sentencing judge characterised the appellant's conduct as in the upper range of offending of its type.

23. He considered the principle of parity which required him to take into account the sentence imposed on Rhonda.  On 13 December 2012 Rhonda was convicted on her own plea of guilty of conspiracy to defeat the course of justice.  That has the same maximum penalty as the offence committed by the appellant.  Rhonda was sentenced to a term of imprisonment of 18 months conditionally suspended for 18 months.  Rhonda was sentenced on the basis that she had been prevailed upon by the appellant, had eventually cooperated with police and had given a signed undertaking to give evidence in the appellant's trial. 

24. The sentencing judge characterised the appellant's offending as far more serious than Rhonda's, as the appellant had devised the plan, approached the McKibbins, provided the necessary background detail and information to give credibility to Raina's admission to police and provided the stolen equestrian equipment which the McKibbins did not know was actually the stolen equipment.  The appellant's deception involved the police, Ms Griffin and the court.

25. The appellant claims in the grounds of appeal that the sentence is manifestly excessive and breaches the parity principle.

26. The appellant also applies to rely on a subset of the additional documents relied on in the conviction appeal being:  Officer Ayling's statement dated 6 November 2012 (Annexure 26); Rhonda's record of interview dated 7 May 2012 (Annexure 21); Officer Doherty' memorandum (Annexure 20); Raina's statement dated 21 August 2013 (Annexure 22); incident report of items seized on 17 June 2010 (Annexure 1); the 2008 Order Form (Annexure 2); three property receipts (Annexure 10); Ms Griffin's affidavit (Annexure 11); Rhonda's telephone records (Annexure 15); Detective Lawson's handwritten notes (Annexure 17); Rhonda's handwritten notes (Annexure 16).  Those documents are relied on for the same reasons as in the conviction appeal.

27. As to the appellant's antecedents, she was aged 39 at sentencing, was a qualified veterinarian and from July 2010 owned and operated the Edgewater Veterinary Clinic which employed four people.  The appellant was in good physical and mental health and had no prior criminal record.

Application to adduce additional evidence

1. The application has to be considered against the backdrop of the legal principles relating to fact finding in sentencing.

2. Where an offender to be sentenced has been found guilty following a trial by jury, the judge who presided at trial must determine the facts relevant to the sentencing process:  Cheung v The Queen (2001) 209 CLR 1 [5], [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the sentencing judge who must find the facts rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] ‑ [11]. It is only the facts necessarily implicit in the verdict of guilty after trial (the core facts) that cannot be controverted in the sentencing process. The verdicts do not establish the non‑core facts, which must be found by the sentencing judge. Where a non‑core fact is aggravating, the judicial finding must be on the criminal standard of beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270 [24] ‑ [25].

3. In order to reach its verdict of guilty, the jury must have positively rejected the appellant's evidence that was either exculpatory or sufficient to raise a doubt as to her guilt.  A significant amount of the additional material relied on by the appellant seeks to rely on or rehabilitate evidence that must have been positively rejected by the jury.  That is not permitted in an appeal against sentence.  So, for example, there can be no doubt that the jury positively rejected the appellant's evidence relating to the alleged meeting with Rhonda at the Edgewater Veterinary Clinic detailed in the appellant's affidavit of 10 May 2012.

4. Further, the findings of fact for sentencing purposes were made by the trial judge based on his assessment of the witnesses and their evidence at trial.  The appellant cannot now rely on material not put to the witnesses at trial.  In any event, the additional evidence on which the appellant seeks to rely does not materially advance her claims.  Having read the relevant transcripts and weighed the credibility of the evidence in an objective way, I am satisfied that it was well open to the sentencing judge to be satisfied beyond reasonable doubt of the adverse findings he made against the appellant. 

5. I would refuse leave to adduce additional evidence in the sentence appeal.

Manifest excess

1. This court can only intervene if the sentencing judge made an express or implied material error of fact or law.  A claim of manifest excess relies on the implication of error.  The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion.

2. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on a scale of seriousness and the personal circumstances of the offender.

3. The maximum penalty for attempting to pervert the course of justice is 7 years' imprisonment.  The trial judge's assessment that the actions of the appellant were in the upper range of offending of this type is correct.  Penalties imposed in other cases for offences of this nature have to be assessed in that light.  The appellant's sentence of 3 years' imprisonment after a trial with no mitigation beyond prior good character is well within the customary range.  As to which, see Murphy v The State of Western Australia [2013] WASCA 178 [28] ‑ [30] and Dudzik v The State of Western Australia [2012] WASCA 195 [23] ‑ [25].

4. Having regard to the significant number of aggravating features in the appellant's offending, correctly identified by the sentencing judge and not repeated again here, she has no reasonable prospect of succeeding in her claim that the sentence is manifestly excessive.

Parity

1. The parity principle requires that like offenders should be treated in like manner.  As with the norm of equal justice, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.  A court will refuse to intervene where parity is justified by differences between co‑offenders including the part each has played in a relevant criminal conduct or enterprise:  Green v The Queen (2011) 244 CLR 462.

2. The sentencing judge explained in detail the relevant differences between the appellant and Rhonda for sentencing purposes.  Those differences are sufficient to justify the disparity in the sentences imposed on Rhonda and the appellant.  This ground has no arguable prospect of succeeding.  Leave to appeal must be refused.

Conclusion

1. For these reasons, I would refuse the application to adduce additional evidence and refuse leave to appeal on each ground in the conviction appeal and each ground in the sentence appeal.  Accordingly, the appeals must be taken to be dismissed.

2. NEWNES JA:  I agree with McLure P.

3. MAZZA JA:  I agree with McLure P.