The State of Western Australia v Diefenbach
[2018] WADC 142
•30 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DIEFENBACH [2018] WADC 142
CORAM: DAVIS DCJ
HEARD: 27 SEPTEMBER 2018
DELIVERED : 30 OCTOBER 2018
FILE NO/S: IND 1612 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
HANNAH LOUISE DIEFENBACH
Catchwords:
Criminal procedure - Application to set aside guilty plea and conviction prior to sentencing - Inherent jurisdiction of the court - Turns on own facts
Legislation:
Misuse of Drugs Act 1981
Result:
Application dismissed
Representation:
Counsel:
| The State of Western Australia | : | Mr C M Graham |
| Accused | : | Mr B Standish |
Solicitors:
| The State of Western Australia | : | State Director for Public Prosecutions |
| Accused | : | Cathal Smith Legal Pty Ltd |
Case(s) referred to in decision(s):
Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31
Liberti v The Queen (1991) 55 A Crim R 120
Maxwell v The Queen [1996] HCA 46; 184 CLR 501
Snook v The State of Western Australia [No 2] [2015] WASCA 29
The State of Western Australia v Duot [2017] WADC 109
The State of Western Australia v Williams [2018] WADC 68
Turner v The State of Western Australia [2015] WASC 490
Wilhelm v The State of Western Australia [2013] WASCA 188
Windie v The State of Western Australia [2012] WASCA 61
DAVIS DCJ:
On 13 February 2018 Ms Diefenbach pleaded guilty in this court to two offences committed on 20 April 2017.
1.That she had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
2.That she was in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to be unlawfully obtained.
The charges arose out of a Misuse of Drugs Act 1981 search of Ms Diefenbach's house, which she shared with her partner and children, on 20 April 2017. The drugs the subject of count 1 were found in two locations - one quantity of methylamphetamine was found in the kitchen, and another quantity was found in a lock box in her bedroom. The property the subject of count 2 was $5,000 cash found inside the same lock box.
After pleading guilty to both charges in the Magistrates Court, Ms Diefenbach was committed to the District Court for sentencing. Her sentencing hearing was listed to take place on 13 February 2018. For the purposes of sentencing, the court was provided with a pre‑sentence report dated 20 October 2017, prepared by community corrections officer Guillaume Tollec.
On 13 February 2018 pleas of guilty were taken from Ms Diefenbach and convictions recorded by his Honour Judge Stevenson. After this, counsel then representing Ms Diefenbach, Ms Kathryn Heslop, made an application to have a trial of issues, in particular in relation to count 1 as to whether Ms Diefenbach possessed the drugs in the house with intent to sell any part of them, or whether she was intending to supply only.
The trial of issues was listed to be heard before his Honour Judge Quail on 3 May 2018. At that hearing Ms Diefenbach, through her counsel, sought an adjournment on the ground that she wished to change her plea.
On 22 June 2018 Ms Diefenbach, now represented by new counsel, filed a change of plea application, supported by an affidavit sworn by Ms Diefenbach on 21 June 2018. The application was for a plea of not guilty to be entered on her behalf to the charges in the indictment pursuant to s 99(5)(b) of the Criminal Procedure Act 2004 (CPA), or the exercise of the inherent jurisdiction of the District Court. Subsequently, by an amended application dated 24 July 2018 the change of plea was brought solely on the basis of CPA s 99(5)(b)).
Ms Diefenbach's application came before me for hearing on 27 September 2018.
The law which applies to the change of plea application
The provisions of CPA s 99(5)(b) are not applicable to this application because Ms Diefenbach has pleaded guilty in this court and convictions have been recorded: Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [202]; The State of Western Australia v Duot [2017] WADC 109 [39] ‑ [41]; The State of Western Australia v Williams [2018] WADC 68.
Ms Diefenbach must rely upon the inherent jurisdiction of the court to permit her change of plea.
The court's inherent jurisdiction – relevant principles
In Birch [174] Mazza JA summarized the inherent jurisdiction as follows:
Once a plea of guilty is entered and a conviction is recorded, a sentencer has a discretion to allow a change of plea to not guilty up until sentence is pronounced if the person establishes that there has been a miscarriage of justice …
The court's approach to an application to change a plea once a conviction is recorded must be one of 'caution bordering upon circumspection' because 'the public interest in the finality of proceedings and … a plea of guilty is taken to be an admission of the elements of the offence': Birch [174]; Liberti v The Queen (1991) 55 A Crim R 120.
Where an application is made to change a plea, the onus is on the applicant to show why he or she should be permitted to do so. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea: Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103] (Hall J; Buss & Mazza JJA agreeing).
The circumstances in which a miscarriage of justice may be established are not closed, but there are well recognized circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. As set out in Windie v The State of Western Australia [2012] WASCA 61 [31] (Mazza JA, with whom McLure P & Newnes JA agreed) and Birch [176] (Mazza JA), these are:
1.Where the accused did not understand the nature of the charge or did not intend to admit guilt; or
2.If upon the admitted facts the accused could not, in law, have been guilty of the offence; or
3.Where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.
These are not, however, the only circumstances that might justify a change of plea and such a change should be permitted by a court whenever not to do so would result in a miscarriage of justice: Snook [103]; Maxwell v The Queen [1996] HCA 46; 184 CLR 501, (510 ‑ 511).
If it appears to a sentencing judge that a plea of guilty was not unequivocal and was not made in circumstances suggesting that it was a true admission of guilt as to all of the elements of the charge (and a waiver of all defences) then it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen (511); Snook [108].
However, it is not sufficient for an accused to seek to attribute a plea of guilty to bad or inadequate advice: Snook [105]. Nor is it sufficient to merely demonstrate that an accused may not have committed the offence in question: Birch [177] (Mazza JA).
An accused person may enter a plea of guilty notwithstanding misgivings about doing so and for reasons other than a belief as to his or her guilt. The entry of such a plea is valid and a conviction based upon the same will not be set aside unless it can be shown that a miscarriage of justice has occurred: Snook [106]; Wilhelm v The State of Western Australia [2013] WASCA 188 [51] (Mazza JA).
In Turner v The State of Western Australia [2015] WASC 490 [34] it was held that the accused's argument that he did not fully appreciate the seriousness of the offence and the likely penalty he might receive was not a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
Basis of the application to change plea
Ms Diefenbach has submitted that, in relation to each count on the indictment:
1.She did not understand the nature of the charge and did not intend to plead guilty;
2.Upon the admitted facts she could not, in law, have been guilty of the offence.
There is, and was, no suggestion that the plea of guilty was obtained by improper inducement, fraud or intimidation.
The evidence at the change of plea hearing
In addition to her affidavit sworn 21 June 2018, Ms Diefenbach gave oral evidence at the hearing before me.
I also heard evidence from two further witnesses called by the State, which opposed the application for change of plea. These witnesses were Ms Diefenbach's former lawyer, Ms Heslop, who swore an affidavit dated 25 June 2018 and also gave evidence at the hearing, and the author of the pre-sentence report, Mr Tollec, who swore an affidavit dated 3 September 2018 and also gave evidence at the hearing.
It is necessary, before turning to the evidence which concerns the specific grounds relied on for the change of plea application, to set out some general details about Ms Diefenbach, to set out the statement of material facts and also to set out some of the details which are recorded in the pre-sentence report prepared by Mr Tollec.
Ms Diefenbach's personal circumstances
Ms Diefenbach is well educated, having completed year 12. Ms Heslop gave evidence that she had no concerns whatsoever as to Ms Diefenbach's intellectual capacity. Ms Diefenbach asked Ms Heslop very intelligent questions whenever she called.[1]
[1] ts 122.
At the time of the charges Ms Diefenbach was addicted to methylamphetamine and on her evidence she was using that drug every day, once or twice a day. She was unable to say how long she had been addicted to the drug. She also confirmed that her partner was also a methylamphetamine user and she assumed he was using every day.[2]
[2] ts 89.
Ms Diefenbach did not work and her partner did labouring work and odd jobs here and there.
At the time of the Misuse of Drugs Act search she and her partner and children were not at the house, but holidaying in Albany. There was someone else, a friend, watching the house and who stayed in and had access to the house while they were away.[3]
The statement of material facts
[3] ts 74, 86.
The statement of material facts, which appears on the prosecution brief, has not formally been admitted in court. (The application for the trial of issues was made before the facts were read after Ms Diefenbach's guilty plea was taken on 13 February 2018). However, Ms Diefenbach in her affidavit of 21 June 2018 said that she met with Ms Heslop and went through the statement of material facts for all of the charges.[4]
[4] Affidavit of Hannah Louise Diefenbach sworn 21 June 2018 (Diefenbach affidavit) par 4; affidavit of Kathryn Alice Heslop sworn 25 June 2018 (Heslop affidavit) par 10.
Mr Tollec, in his pre‑sentence report, his affidavit and oral evidence, also recorded that Ms Diefenbach read and agreed with the statement of material facts.[5]
[5] Affidavit of Guillaume Tollec sworn 3 September 2018 (Tollec affidavit) par 13 and 14; ts 103.
The material facts are:
At 12:30 pm on Thursday, 20 April 2017, officers from the Gang Crime Squad executed a Misuse of Drugs Act search warrant at [Ms Diefenbach's address].
Upon entry into the premise it was ascertained no one was present. As a result an independent Police Sergeant attended and observed the conduct of the search.
The accused resides at the address with her de facto partner (also charged) and four children.
At the aforementioned place officers located the following:
Charge 1) A clip seal bag containing approximately 3.33 g of methylamphetamine located within a lock box underneath the mattress in the accused bedroom. Furthermore two clip seal bags containing approximately 1.74 g and 1.66 g of methylamphetamine was located inside a cigarette packet in the kitchen. The combined weight of methylamphetamine located was approximately 6.73 g.
Charge 2) $5000 in Australian currency was located together with the methylamphetamine inside the lock box. The money were separated into five $1000 bundles.
Additionally drug paraphernalia in the form of digital scales, plastics group and empty's clip seal bags was located at the premise.
I understand from further information on the brief file, including certificates of approved analyst, that the quantity of methylamphetamine in the lock box was 3.25 g with a purity of approximately 41% and the rest of the methylamphetamine comprised two quantities of less than 2 g - 1.7 g and 1.57 g respectively. The total methamphetamine was therefore 6.52 g.
In cross‑examination in the hearing before me, Ms Diefenbach acknowledged that the statement of material facts talked about two different amounts of drugs in two different locations, the kitchen and bedroom.[6]
[6] ts 81.
In addition to the two indictable offences, possession of methylamphetamine with intent to sell supply, and possession of unlawfully obtained property, Ms Diefenbach was also charged with other offences which were being dealt with in the Magistrates Court. These were charges of possession of drug paraphernalia, possession of a prohibited weapon, having ready access to both weapons and illegal drugs and simple possession of a prohibited drug (cannabis). Ms Diefenbach pleaded not guilty to these charges, instructing her lawyer Ms Heslop that the cannabis and weapons were her partner's, that she did not know about them and did not agree with those charges.[7] She also gave evidence in the hearing before me that her partner had told her he had spoken to the police about the weapons and cannabis charges, and she said that 'they were his'.[8]
[7] Heslop affidavit par 10 and 13.
[8] ts 82.
After negotiations with the investigating officer, the police agreed to discontinue the charges of possession of a prohibited weapon, having ready access to both weapons and illegal drugs and possession of prohibited drug (cannabis) on the basis that Ms Diefenbach would plead guilty to the remaining charges.[9] That is, of course, eventually what Ms Diefenbach instructed Ms Heslop she would do, and did do. On 1 September 2017 Ms Diefenbach pleaded guilty to possession of drug paraphernalia, which was dealt with on that day in the Magistrates Court with the imposition of a fine, and the remaining two charges for the indictable offences were committed to an initial sentence mention date of 27 October 2017, with an order made for a pre‑sentence report.[10]
The pre‑sentence report
[9] Heslop affidavit pars 17 and 18.
[10] Heslop affidavit pars 19 and 30.
For the purpose of the preparation of the pre‑sentence report for the two indictable offences, Ms Diefenbach met with and was interviewed by Mr Tollec on 29 September 2017.
Ms Diefenbach claimed that she did not understand Mr Tollec. He did have a very heavy French accent, but in my view he was readily understandable throughout his evidence. She also claimed she was very stressed during this interview, saying that she had just found out she was pregnant again. Her evidence was that she did not tell anyone, but she did tell Mr Tollec because he recorded that fact in the pre-sentence report.
In his pre-sentence report, when discussing the 'Current Offence Circumstances', Mr Tollec recorded the following (with my emphasis in italics):
Ms Diefenbach's openness to discuss her offending during the interview was limited. She reported that prior to the offences of 20/04/2017 she and her partner had developed a methamphetamine addiction which they were funding by selling drugs. She indicated she was using approximately one gram a day at the time of the offences which she could not afford as a Homemaker. Although Ms Diefenbach advised feeling guilty for committing a 'crime in the community' and feeling stressed, she was unable to articulate the potential impact of her actions onto the community. She agreed with the Statement of Material Facts and recognised the seriousness of her offending by acknowledging the potential sentencing outcomes, however she minimised her actions by claiming 'it was not an operation' and 'we didn't do it to make money' and reported dealing drugs only to fund their methylamphetamine habit.
It is apparent from the evidence that Mr Tollec gave in the hearing before me, and he was extensively cross-examined about this, that he did a very thorough job in interviewing Ms Diefenbach and took extensive contemporaneous notes. Whenever he recorded direct speech used by Ms Diefenbach he put the words in quotation marks.[11] The words 'not in operation' were noted down by Mr Tollec in quotation marks, indicating direct speech.[12] Mr Tollec also gave evidence that in the pre-sentence report where words were in quotation marks, that was because that was what Ms Diefenbach told him.[13]
[11] ts 108 and 109.
[12] ts 109.
[13] ts 110 – 111.
In her evidence at the hearing before me Ms Diefenbach maintained that she never used the word 'operation'. She did, however, admit that she had said 'we didn't do it to make money'. As to what the 'it' was, the following exchange occurred:[14]
[14] ts 78 – 79.
DAVIS DCJ: And what was it that you said you were doing?
DIEFENBACH H L: I don't remember, but he was - I think he was asking questions, like, before that of, like, 'What were you doing it for?' Like, he kept kind of like hounding, like, 'What were you doing it for?' Cos I didn't understand lots of questions so I took time to answer, and I was upset at the time as well.
STANDISH MR: So what's your recollection of what you said to him?
DIEFENBACH H L: I just - I remember saying that we didn't do it to make money. Like, that's the only recollection that I have of it, and that I was really upset at the time.
DAVIS DCJ: What - what's 'it'? 'We didn't do it to make money'. What's 'it'?
DIEFENBACH H L: I don't know. Like ‑ ‑ ‑
DAVIS DCJ: You don't know?
DIEFENBACH H L: Like, I guess it means we didn't do it to make money, like ‑ ‑ ‑
STANDISH MR: Do what?
DIEFENBACH H L: Well, sell or supply or - I don't - I don't know.
STANDISH MR: Well, did you say anything about selling or supplying?
DIEFENBACH H L: No, not to him. No, never.
STANDISH MR: Did you say anything about giving it to friends if they asked for it?
DIEFENBACH H L: Yes. I said that, yes.
STANDISH MR: All right, but you're ‑ ‑ ‑
DAVIS DCJ: You - sorry, that - you admit that you said to Mr Tollec you would give---
DIEFENBACH H L: No, not to Mr Tollec; no.
STANDISH MR: To whom?
DIEFENBACH H L: I told Mr Quail.
STANDISH MR: The judge? --- Yes
In the hearing before his Honour Judge Quail on 3 May 2018, when asked whether she would supply to someone else, she answered 'I said that if our friends would ask, that's when. And that's what I said to my lawyer'.[15] Ms Diefenbach subsequently told me that what she said to Judge Quail was true, and that she also said this to her lawyer, Ms Heslop.[16]
[15] ts 42.
[16] ts 97: Heslop affidavit par 10d where Ms Heslop noted that Ms Diefenbach instructed, in relation to the methylamphetamine 'sharing it'.
With this preliminary information I now turn to consider the evidence at the hearing before me which was given in relation to Ms Diefenbach's knowledge of and understanding of each of the indictable charges, and generally the circumstances surrounding her plea of guilty for each of the charges.
Count 1 – possession of methylamphetamine with intent to sell or supply
In her affidavit sworn 21 June 2018, Ms Diefenbach deposed that she had no knowledge of the existence of the methylamphetamine found in the kitchen. She explained that at the time she entered a plea she thought that because she was the leaseholder of the premises, she was automatically considered to be in possession of it. She repeated this in her evidence and hearing before me saying that 'I was under the impression that I'm going to get charged with it anyway because it was my house. I have to know what's going on in my house'.[17]
[17] ts 82.
Ms Diefenbach confirmed in her affidavit she was aware of the methylamphetamine found in the bedroom in the lock box, but deposed to the fact that this quantity of methylamphetamine belonged to herself and her partner and it was for her personal use only. She understood at the time of entering the plea that if she intended to share the methylamphetamine with her partner that would amount to an intent to supply. She also said this:[18]
If asked, I may have supplied methylamphetamine to my friends. However I had no intent to supply the methylamphetamine found in the lock box to my friends.
[18] Diefenbach affidavit, par 19.
It is clear from the evidence of both Ms Diefenbach and Ms Heslop that Ms Diefenbach was given advice as to what constitutes possession at law, and the fact that more than one person could possess an item. However, Ms Diefenbach in her evidence claimed that she didn't understand the explanation given by Ms Heslop and was too 'intimidated' to ask her to explain it in a more plain English way.[19] Later, in cross examination, Ms Diefenbach claimed that she was confused with what Ms Heslop told her and was 'scared to tell her everything' because she was intimidated by her.[20]
[19] ts 74.
[20] ts 84.
Ms Diefenbach was asked about her understanding of the concept of joint possession, and explained in her words 'I understand that joint is together'.[21] Ms Diefenbach also gave evidence that Ms Heslop advised her about the concept of supply:[22]
Was there any discussion about whether you could supply to your own partner?---Yes, she told me that supply was - even if I gave it to my partner, it’s still classed as supply.
[21] ts 76.
[22] ts 76.
In cross-examination she agreed that her conversation with Ms Heslop about joint possession took place before she pleaded guilty in the Magistrates Court and again before she pleaded guilty in this court.[23]
[23] ts 85.
In cross examination Ms Diefenbach was asked about her trip to Albany and in the following exchange took place:[24]
What money did you use to travel to Albany?---What money? The money I got from selling.
[24] ts 90.
I must admit to not having heard Ms Diefenbach saying 'the money I got from selling' and it is apparent that neither did counsel for the State, as he made no mention of this during the balance of his cross‑examination or in his submissions. I first noticed this when reviewing the transcript. I have listened to the recording of the hearing and I can confirm that this is definitely what she said.
Ms Heslop gave evidence that she discussed with Ms Diefenbach her ability to pay for what was a fairly expensive amount of methamphetamine, and had a discussion about Ms Diefenbach's and her partner's earning capacity.[25]
[25] ts 121.
In cross‑examination Ms Diefenbach agreed that the first time she said anything about not knowing about the drugs in the kitchen was at the hearing before Judge Quail on 3 May 2018.[26]
[26] ts 96.
In Ms Heslop's evidence, she recalled that while Ms Diefenbach had always accepted possession of the drugs underneath the bed, she denied knowledge of the drug in the kitchen. However, Ms Heslop could not recall whether that denial was before or after Ms Diefenbach's plea of guilty.[27]
Count 2 – possession of unlawfully obtained property
[27] ts 119.
In relation to count 2, the possession of the cash, in her affidavit of 21 June 2018 Ms Diefenbach deposed that she was aware of the cash in the lock box but did not have a key to it. Her partner had the key and she did not know where the key was kept. She said she did not know how the cash came to be in the lock box but was aware that her partner was intending to borrow money to cover some household expenses and renovations to their backyard.[28]
[28] Diefenbach affidavit pars 12 – 13.
Ms Diefenbach further deposed that the time she entered her plea to this charge, her understanding was that if there was a possibility that the cash was stolen or unlawfully obtained and it was in her possession, then she was guilty of the offence. She then stated:[29]
Given my lack of knowledge about the origins of the cash, I thought I had to accept that there was at least a possibility of being stolen or unlawfully obtained.
I believe that I did not have reasonable grounds for suspecting that the cash was stolen or unlawfully obtained at the time it was allegedly in my possession.
[29] Diefenbach affidavit pars 14 – 15.
In her evidence at the hearing before me Ms Diefenbach stated that she had no understanding of where the money had come from. All that she knew was that her partner was going to get money, because they needed money. He was going to ask a friend.[30]
Circumstances relating generally to the pleas of guilty
[30] ts 81, 92.
Ms Heslop gave evidence that when she interviewed Ms Diefenbach on 13 July 2017 she instructed Ms Heslop to the following effect:[31]
(a)Ms Diefenbach did not agree with the weapon charges and the cannabis charges, namely she denied 'possession', however she wanted it over with in respect of all the charges.
(b)She would accept self-use and supply to her partner but nothing else in respect of the sale and supply of methylamphetamine.
(c)She instructed Ms Heslop to write to the investigating officer and ask them to give consideration to discontinuing the three charges relating to weapons and cannabis that she did not agree with.
[31] Heslop affidavit par 13.
As I have set out in [34] above, this was done and police did discontinue the charges of possession of a prohibited weapon, having ready access to weapons and illegal drugs and possession of a prohibited drug (cannabis).
After this, in a telephone call of 9 August 2017 Ms Heslop gave further advice to Ms Diefenbach about the two indictable offences, in response to which Ms Diefenbach told Ms Heslop that she would consider and call Ms Heslop back.[32]
[32] Heslop affidavit pars 18 – 21.
Ms Diefenbach did call Ms Heslop back on 10 August with some questions. Ms Heslop indicated all of the questions and her advice to Ms Diefenbach in her affidavit sworn 25 June 2018. Again Ms Diefenbach said to Ms Heslop that she would be considering her position and give Ms Heslop instructions at court the next day.[33]
[33] Heslop affidavit pars 22 – 36.
Both Ms Diefenbach and Ms Heslop gave evidence that on each occasion when Ms Heslop provided advice, she always said it was a matter for Ms Diefenbach as to how she should plead – as Ms Diefenbach described it, 'she always said that it was my choice'.[34] Ms Diefenbach was also given plenty of time to consider her position, and indeed there was more than one court appearance, before the pleas of guilty were entered in the Magistrates Court on 1 September 2017.[35]
[34] ts 75, Heslop affidavit pars 20c and 22b.
[35] Heslop affidavit pars 20 – 30.
Ms Diefenbach gave evidence that she pleaded guilty 'because I was scared, I was intimidated and the 25% was just the best option'.[36] I understood this evidence to refer to the 25% discount which Ms Diefenbach expected to receive from her head sentence, pursuant to s 9AA of the Sentencing Act 1995. She had been advised about this by Ms Heslop.[37]
[36] ts 75.
[37] Heslop affidavit par 11 and exhibit 4.
According to Ms Heslop's evidence, on 11 August 2017 when Ms Diefenbach appeared in the Magistrates Court she told Ms Heslop that she 'just wanted to plead guilty' and 'be done'.[38]
[38] Heslop affidavit par 27.
At some stage after pleading guilty and before the listing of the trial of issues which had been requested at the hearing on 13 February 2018, Ms Diefenbach indicated to Ms Heslop a desire to change her plea. Ms Heslop gave evidence that she canvassed this with her and ultimately, after receiving advice about her options, Ms Diefenbach decided she did not wish to change her plea. Ms Heslop then asked Ms Diefenbach to sign an authority indicating her desire to maintain her pleas of guilty:[39] That signed authority recorded as follows:
[39] Heslop affidavit annexure KAH3.
1.I understand the charges against me.
2.I wish to maintain my plea of guilty.
3.I understand I can apply to change my plea.
4.I understand that I am likely to be sentenced to a term of imprisonment for these offence.
5.I confirm that I wish to plead guilty and finalise these matters.
6.I confirm this in relation to the charges of
– possession with intent to sell supply (meth)
– possession of unlawfully obtained property (cash).
When cross-examined about this signed authority, Ms Diefenbach gave evidence that she read it five times before signing it. She first claimed she did not understand anything in it, but then later said she understood the words 'I wish to plead guilty', although she said she did not understand anything else.[40] After being cross-examined about her level of education and her ability to read and write, she then gave evidence that she pleaded guilty 'because I wanted it out of the way and done with'.[41]
[40] ts 94 – 95.
[41] ts 96.
Ms Heslop gave evidence that she obtained the signed authority because Ms Diefenbach had raised some issues. Ms Heslop had then gone through what her options were and what the process was. Ms Diefenbach indicated at that stage that she did not wish to continue with an application to change her plea. Ms Heslop, of course, told Ms Diefenbach that she would need to see another lawyer for further advice. Then Ms Diefenbach told Ms Heslop that she wanted to maintain her plea of guilty because she wanted to finalise the matters. Concerned at that point, Ms Heslop asked Ms Diefenbach to sign the authority.[42] Ms Heslop was also concerned that Ms Diefenbach was going to plead guilty in an effort to have the charges against her partner discontinued.[43]
[42] ts 114-115.
[43] ts 116 and 121 – 122.
After signing the authority, Ms Diefenbach sent Ms Heslop an email indicating that she did want to continue with an application to change her plea.[44]
[44] ts 116.
Consideration and findings
I would not permit Ms Diefenbach to change her plea on the basis that she did not understand the nature of the charges and did not intend to plead guilty. For the following reasons I am satisfied that Ms Diefenbach did understand the nature of the charges and did intend to plead guilty.
It is clear that Ms Diefenbaker received appropriate advice from Ms Heslop. Ms Diefenbach is literate, having completed her education to year 12, and acknowledged during the course of the evidence that she had read all relevant materials. She certainly does not suffer from any known intellectual difficulty or language barrier and Ms Heslop's evidence, which I accept, is that she was not concerned about Ms Diefenbach's intellectual capacity. Indeed, Ms Heslop observed that Ms Diefenbach asked very intelligent questions whenever she called.
I am not able to accept Ms Diefenbach's evidence that she did not understand the explanations or advice given to her by Ms Heslop. Having heard from and seen Ms Heslop I am also unable to accept Ms Diefenbach's evidence that she was in some way intimidated by Ms Heslop. Ms Heslop was, as even Ms Diefenbach's counsel acknowledged at the hearing before me, neither intimidating nor scary, and was an impressive witness.[45]
[45] ts 129.
On factual matters, I find Ms Heslop a credible and reliable witness and I have no hesitation in accepting her evidence.
I am satisfied that Ms Diefenbach did understand the concept of possession and joint possession. I make this finding not only on the basis of the evidence from Ms Heslop about the advice that she gave to Ms Diefenbach, but also Ms Diefenbach's own evidence as I have set out in [43], [45] and [46] above.
In addition it is significant, in my view, that after reading the statement of material facts, Ms Diefenbach gave instructions to Ms Heslop that she did not know about the weapons and cannabis and did not agree with the weapons charges and the charge of possession of cannabis.[46] Given these instructions, I find that Ms Diefenbach clearly understood the concepts of knowledge and possession of an item.
[46] See [33] above.
I am not able to accept Ms Diefenbach's claim that her plea of guilty to the indictable charges was entered on the basis that she thought that because she was the leaseholder of the premises, she was automatically considered to be in possession. This is inconsistent with her appreciation and understanding that if she did not know about something in the house (i.e. the weapons and cannabis), she could say so and a plea of not guilty would be made on her behalf.
I accept the evidence from Mr Tollec, the author of the pre‑sentence report, that he took Ms Diefenbach through and she agreed with the statement of material facts and when she was questioned about her offending behaviour she said 'it was not an operation' and 'we didn't do it to make money'. The latter statement is something that Ms Diefenbach has admitted making. The 'it' can only relate refer to this offending and can only mean the sale of methylamphetamine.
I am satisfied also that Ms Diefenbach told Mr Tollec that she and her partner were addicted to methylamphetamine and were funding that addiction by selling drugs. Indeed, Ms Diefenbach's statements that this was 'not an operation' that 'we didn't do it to make money' is consistent with her and her partner selling methylamphetamine in order to fund their drug habit.
In addition, during the course of her evidence when she was being cross-examined about how she funded the family holiday in Albany, she made an admission that she had been selling drugs.
I am satisfied that Ms Diefenbach received competent legal advice, and she was told more than once by Ms Heslop that whether or not she pleaded guilty to the indictable charges was a matter for her. Ms Diefenbach was given plenty of time to consider her position and get back with instructions. The decision to plead guilty was not rushed.
I would also not permit Ms Diefenbach to change her plea on the basis that she could not, in law, have been guilty of the offence. This aspect of her application is based on the submission that, for count 1, she didn't know about the drug in the kitchen, and the drug in the bedroom was her and her partner's for sharing together.
For the following reasons I am satisfied that she is, in law, guilty of the offences and there has been no miscarriage of justice.
I am not able to accept Ms Diefenbach's evidence that she did not know about the methylamphetamine in the kitchen. For the reasons I have set out in [70] – [72] above, Ms Diefenbach knew to tell her lawyer, Ms Heslop, when she did not know about an item in the house. At the time Ms Diefenbach instructed Ms Heslop that she knew nothing about the cannabis and weapons in the house, she made no mention of not knowing about the drugs in the kitchen. Her claim that she knew nothing about the drugs in the kitchen was not raised until much later, and, I find, well after the hearing of 13 February 2018 when the pleas of guilty were taken, convictions recorded and a trial of issues requested.
However, even if she knew about and possessed only the methylamphetamine in the lock box under the bed, the quantity of 3.25 g exceeded the presumptive amount pursuant to s 11 of the Misuse of Drugs Act which deems that she possessed that drug with the intent to sell or supply.
In her evidence before me Ms Diefenbach admitted that she would supply to friends if they asked, and she also made the admission that she had been selling this drug. This is evidence that Ms Diefenbach has a tendency or propensity to engage in dealing in methylamphetamine and supports the likelihood that on this occasion she was also in possession of the drug with the intention of selling or supplying at least a portion of it.
Ms Diefenbach has, of course, admitted that at least part of the methylamphetamine – the quantity in the lock box under the bed – she possessed jointly with her partner with the intent of sharing it with him.
It was suggested by Ms Heslop in her affidavit[47] and also by Mr Standish, counsel for Ms Diefenbach at the hearing, that two people who jointly possess a drug and share it between themselves can, as a matter of law, only be convicted of simple possession and not possession with intent to sell supply.
[47] par 24.
As a matter of law, I am unable to accept this proposition.
There is a very wide definition of supply in the Misuse of Drugs Act, s 3:
To supply includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.
It has been held that where three people jointly possess a drug, two of them can have the intent to supply to the third person: Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31. In Davies the Court of Appeal dismissed an argument made by the appellants that they could not in law be guilty of possessing a drug with intent to supply it to the third person because at the time of their possession he was already in possession of the same drug.
In my view, two people who are in possession of a prohibited drug with the intention of sharing or supplying it to each other are in no different position from someone who is warehousing or bailee for the ultimate owner of the drug, or transporting the drug for the owner. Each of two people who jointly possess a prohibited drug possess the whole quantity of the drug. Permitting the other in joint possession to use a part of the drug, making available some of the drug to the other, or providing some of the drug to the other - in other words sharing in the drug - constitutes a supply within the definition under the Misuse of Drugs Act.
Having regard to the matters I have set out in [80] to [87] above, I have concluded that Ms Diefenbach would be unable to prove that she possessed the methylamphetamine the subject of count 1 without the intent to sell or supply any part of the drug to another person.
In relation to count 2, it is relevant that the $5,000 cash was stored in the same lock box as the methylamphetamine. This fact, together with Ms Diefenbach's and her partner's addiction to methylamphetamine, their financial situation and Ms Diefenbach's admission to selling drugs, leads me to conclude that the $5,000 was reasonably suspected of being unlawfully obtained and Ms Diefenbach would have real difficulties in proving a defence pursuant to s 417(2) of the Criminal Code.
I have concluded that there is not a strong case to set aside Ms Diefenbach's convictions based on her guilty pleas. This is not a situation where Ms Diefenbach could not, in law, have committed either of the charged offences.
Ms Diefenbach's desire to plead guilty to get these matters out of the way and to have this 'done with', does not affect her position. As I have outlined in [17] above, a plea of guilty made notwithstanding misgivings about doing so and for reasons other than a belief as to her guilt is still a valid plea.
For all of these reasons I have concluded that there has been no miscarriage of justice in Ms Diefenbach's plea of guilty to either of the indictable charges.
I am not otherwise satisfied that a miscarriage of justice has occurred for any other reason.
Ms Diefenbach's application to change her plea must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
ASSOCIATE TO JUDGE DAVIS30 OCTOBER 2018
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