Waters v Wigger

[2017] WASC 268

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WATERS -v- WIGGER [2017] WASC 268

CORAM:   MCGRATH J

HEARD:   7 SEPTEMBER 2017

DELIVERED          :   14 SEPTEMBER 2017

FILE NO/S:   SJA 1005 of 2017

BETWEEN:   CRAIG ANTHONY WATERS

Appellant

AND

FRANCIS WIGGER
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE E CAMPIONE

File No  :FR 7407 of 2015

Catchwords:

Criminal law - Appeal against conviction - Possession of amphetamine with intent to sell or supply - Plea of guilty - Whether to set aside a conviction based on a plea of guilty - Integrity of plea - Whether the appellant entertained a genuine consciousness of guilt - Extension of time to appeal not granted - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), pt 2, s 8(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), pt 3A

Result:

Extension of time in which to appeal not granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr B M Murray

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Borsa v The Queen [2003] WASCA 254

Gibson v The State of Western Australia [2017] WASCA 141

Gillespie v The State of Western Australia [2016] WASCA 216

Liberti v The Queen (1991) 55 A Crim R 120

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Ramsay v Trovarello [2009] WASC 146

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Snook v The State of Western Australia [No 2] [2015] WASCA 29

Vella v The State of Western Australia [2006] WASCA 129

Waters v Wigger [2016] WASC 377

Waters v Wigger [2017] WASCA 46

MCGRATH J: 

Introduction

1. The appellant seeks leave to appeal against his conviction for one charge of possession of a prohibited drug, namely amphetamine, with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

2. The appellant, who was caught red‑handed with amphetamine inside the underwear he was wearing, pleaded guilty to the charge before a magistrate whilst represented by counsel.  The appellant now wishes to set the conviction aside that was based on his own plea of guilty to the charge.  This appeal against conviction was filed out of time and, therefore, an extension of time is required.  For the following reasons, I have determined that an extension of time should not be granted and accordingly the appeal is dismissed.

3. In these reasons for decision, I will consider the following:

   1.The procedural history.

   2.The grounds of the appeal.

   3.The law regarding setting aside a plea of guilty.

   4.The merits of the appeal.

Procedural history

1. On 6 July 2015, a Prosecution Notice was lodged alleging that the appellant, with intent to sell or supply to another, had in his possession a prohibited drug, namely 3.99 g of amphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act.  After a number of appearances in the Magistrates Court the appellant was referred to a speciality court[1] namely, the Drug Court.  The appellant, represented by counsel, applied to be directed to the Drug Court.

   [1] Sentencing Act1995 (WA), s 4(1) read with reg 4A of the Sentencing Regulations1996 (WA).

2. On 9 November 2015, the appellant was convicted on his plea of guilty in the Perth Magistrates Court before Magistrate Campione.  The appellant was represented at that time by counsel who made comprehensive submissions supporting the appellant's entry into the Drug Court program. 

3. On 18 March 2016, the appellant appeared in the Drug Court and a pre‑sentence order (PSO) of 12 months duration with supervision and programme requirements was imposed on the appellant pursuant to pt 3A of the Sentencing Act 1995 (WA). The appellant was given an 'indicated sentence' being 12 months' immediate imprisonment.[2]  The indicated sentence, which has no statutory basis,[3] is the recommended sentence for an accused in the Drug Court should he fail to complete the Drug Court requirements.[4]

   [2] ts 60 (18/3/16).

   [3] Waters v Wigger [2017] WASCA 46.

   [4] Ramsay v Trovarello [2009] WASC 146.

4. On 6 May 2016, Magistrate Campione suspended the appellant's participation in the Drug Court and on 20 May 2016 terminated that participation and remanded him to appear before a different magistrate to be sentenced.

5. On 20 June 2016, Chief Magistrate Heath sentenced the appellant to 12 months' immediate imprisonment with eligibility for parole.

6. On 9 August 2016, the appellant filed an appeal against the sentence imposed by the Chief Magistrate.  This appeal was commenced on the appellant's behalf by counsel.  The appellant relied upon four grounds of appeal.  The appellant did not commence an appeal against conviction at that time. 

7. On 18 November 2016, Martin J dismissed the appellant's appeal against sentence.[5]  Consequently, the appellant appealed to the Court of Appeal in respect to the sentence. 

   [5] Waters v Wigger [2016] WASC 377.

8. On 1 February 2017, the appellant commenced this appeal against conviction (which is an appeal seeking to set aside his own plea made before Magistrate Campione on 9 November 2015). 

9. On 13 March 2017, the Court of Appeal allowed the appeal against sentence, set aside the sentence imposed by the Chief Magistrate and remitted the matter to another magistrate for the appellant to be sentenced.[6]  Given this appeal against conviction, the appellant is yet to be resentenced in the Magistrates Court.

   [6] Waters v Wigger [2017] WASCA 46.

10. As mentioned, the appeal is out of time.  The appellant was convicted on 9 November 2015 and sentenced on 20 June 2016, but did not commence this appeal against conviction until 1 February 2017.  In support of the application for an extension of time in which to appeal, the appellant filed affidavits sworn 17 May 2017, 17 July 2017 and 16 August 2017 respectively.  The appellant does not provide an adequate reason in any of the affidavits for the significant delay.  In his affidavit of 17 May 2017, the appellant does no more than say that he had received advice from his lawyer, Mr Ben Jackson of Holborn Lenhoff Massey that he 'should absolutely appeal his conviction.'[7]  There is no particularisation provided.  The appellant also claims that he tried 'countless times to submit the application to appeal the conviction' but was turned away by clerks at the Supreme Court.[8]  There is no particularisation of this claim other than the bare assertion.  The appellant in the affidavit sworn 17 July 2017 contends that his lawyer told him that he had no other option because he would 'not be believed over 10 police officers that said I had made admissions.'[9]  I will determine the merits of the appeal and then determine whether there would be a miscarriage of justice should the extension of time in which to appeal not be granted.

    [7] Affidavit of Appellant sworn 17 May 2017 [4].

    [8] Affidavit of Appellant sworn 17 May 2017 [5].

    [9] Affidavit of Appellant sworn 17 July 2017 [2].

Appeal

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.

2. An appeal hearing is not a retrial of the issues that were before the primary court.  The appellant must demonstrate that the primary court fell into error in a manner specified in a ground of appeal.  The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[10]  On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[11]

   [10] Criminal Appeals Act2004 (WA), s 8(1).

   [11] Criminal Appeals Act2004 (WA), s 14.

3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[12]

   [12] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].

4. On 21 July 2017, Martino J ordered that the grounds of appeal, which were attached to the appellant's affidavit filed 18 January 2017, would be treated as if they formed part of the notice of appeal.  The hearing of the appeal proceeded on the basis that those four grounds constituted the grounds upon which the appellant wished to rely for his appeal against conviction. 

5. The grounds of appeal are as follows:

   Ground 1 -The police used threats, improper inducement and intimidation to obtain a guilty plea.

   Ground 2 - The police fraudulently made several false statements in their statement of material facts.

   Ground 3 -The appellant when entered the plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt.  (Regina v Davies) (NSWCCA, 16 December 1993 Regina v Ganderton) (NSWCCA, 17 December 1998 and Regina v Favero 1999 NSWCCA 320) (Regina v Mc Lean 2001 NSWCCA58) (Regina v KCH 2001 NSWCCA273)

   Ground 4 -The police failed to investigate the person's details on drivers license card that the appellant handed to them.  These details were of the person who had sole possession of the car for almost 3 months prior to the appellant taking back possession of the vehicle about 1 hour prior to being pulled over. 

   Police failed to acknowledge and investigate crucial evidence that would have proven my innocence.

6. I will now consider the merits of the four grounds of appeal.  Given that the grounds contend that the appellant's plea of guilty should be set aside, I will outline the relevant legal principles in respect to setting aside a plea of guilty.

Legal principles of setting aside a plea of guilty

1. Section 8(2) of the Criminal Appeals Act provides that an appeal may be commenced against a decision 'even if the decision was made after a plea of guilty or an admission of the truth of any matter.'  An appellate court will not set aside a conviction from a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[13]

   [13] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157; Gibson v The State of Western Australia [2017] WASCA 141.

2. Whilst recognising that the circumstances which will constitute a miscarriage of justice cannot be exhaustively stated, there are three categories in which appellate courts have been prepared to set aside pleas of guilty, namely:[14]

   1.Where the appellant did not understand the nature of the charge or did not intend to admit guilt;

   2.If upon the admitted facts the appellant 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.

   [14] Vella v The State of Western Australia [2006] WASCA 129 [26]; Gillespie v The State of Western Australia [2016] WASCA 216 [34] ‑ [35]; Borsa v The Queen [2003] WASCA 254 [20].

3. A court will approach any attempt to set aside a conviction upon a plea of guilty with 'caution bordering on circumspection.'[15]  It is not enough for the appellant to demonstrate, on appeal, that he was innocent of the charge to which he pleaded guilty.[16]  That is because an accused person may enter a plea of guilty for reasons other than a belief as to their guilt.  A person may plead guilty for many reasons, for example, to avoid publicity, to protect family, or to obtain the benefits of a discount at sentencing for a plea of guilty.[17]

   [15] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [104]; Liberti v The Queen (1991) 55 A Crim R 120, 122.

   [16] Meissner v The Queen 141,157; Gillespie v The State of Western Australia [34].

   [17] Meissner v The Queen 157; Snook v The State of Western Australia [No 2] [106].

Merits of the appeal

Ground 3

1. By ground 3, the appellant makes a number of assertions which comprise a claim that he did not understand the charge or did not intend to plead guilty. 

2. The appellant asserts in his written submissions that the 'issue is whether the defendant when entering the plea of guilty understood that the plea was an admission of his guilt of the offence charged.'[18]  There is also a contention that the appellant was advised that he needed to plead guilty to transfer the matter to the Drug Court.[19]  Further, the appellant in the submissions attached to his affidavit contends that he was not in possession of all the facts and did not entertain a genuine consciousness of guilt.[20]  The appellant claims in his written submissions that he was denied the opportunity to present a defence against the charges, namely a denial that he intended to sell or supply and further, to dispute the weight of the drugs.[21] 

   [18] Appellant's Submissions [19].

   [19] Appellant's Submissions [21].

   [20] Appellant's Affidavit sworn 18 January 2017, 31.

   [21] Appellant's Submissions [24].

3. To the contrary to what is asserted by the appellant, the proceedings in the Magistrates Court show that the appellant was actively involved and was cognisant of the nature of the allegation.  Further, that the appellant, who was represented by counsel, clearly understood the facts, including the nature and weight of the substance.  The comprehensive plea in mitigation stated the basis upon which the appellant pleaded to the charge. 

4. On 9 November 2015, the appellant appeared before Magistrate Campione.  Counsel represented the appellant.  The prosecution opposed the appellant's application to be referred to the Drug Court.  The appellant's counsel made detailed submissions, referring to medical reports, appellant's use of medication and the appellant's drug use in support of the application that the appellant be dealt with by the Drug Court.[22]

   [22] ts 2 ‑ 6 (9/11/15).

5. During the submissions the appellant was actively engaged, which is evidenced by his personal intervention whilst his counsel was addressing the court.[23]  The appellant clarified information regarding his use of medication.[24]  At one point the appellant's counsel submitted that the appellant had received $950 from his partner for the purpose of paying rent but intended to spend that amount to purchase drugs.  When the magistrate raised the fact that the appellant had not informed the police of that intention the appellant personally submitted that he did make such an admission to the police.[25]

   [23] ts 2 ‑ 11 (9/11/15).

   [24] ts 3 ‑ 4 (9/11/15).

   [25] ts 13 (9/11/15).

6. On 9 November 2015 the charge was put to the appellant, in the presence of his counsel, in the following terms:[26]

   HER  HONOUR: …So you're charged that on 27 June this year in Murdoch with intent to sell or supply to another you had in your possession a prohibited drug, amphetamine - 3.99 grams.  Do you understand that amended charge?

   ACCUSED: Yes, I do.

   HER  HONOUR: And do you plead guilty or not guilty?

   ACCUSED: Guilty, your Honour.

   [26] ts 14 (9/11/15).

7. Accordingly, the charge gave full particularisation of the allegation, including the weight and the nature of the substance.  Significantly, the charge pleaded that the accused had the intention to sell or supply the prohibited drug.

8. Following that appearance, the appellant re‑appeared before the Magistrates Court until his participation in the Drug Court was terminated.

9. On 5 January 2016, the appellant, represented by another counsel, submitted that he had pleaded guilty to the charge that was particularised by both an intent to sell or supply and that the plea was an acceptance of those elements.  The counsel then submitted that the appellant had given instructions 'that he does wish to accept the elements of the defence (sic) and maintain his pleas of guilty.'[27]

   [27] ts 28 (5/1/16).

10. On 18 March 2016, Magistrate Campione gave the indicated sentence.  During that hearing the appellant's counsel outlined the appellant's antecedents and in particular, the extent of the appellant's drug use which escalated to half a gram of methylamphetamine daily for the past three years.[28]  During the hearing the appellant was actively engaged, making submissions personally to the court.[29]  The magistrate then gave reasons for the indicated sentence and stated, in part, that the circumstances of the commission of the offences were highly concerning given the weapons and that 'the summary courts have to be guided by what the Court of Appeal is saying in relation to the commission of intent to sell and supply.'[30]  Her Honour, understandably, concluded that 'there was almost an element of commerciality in that offending, given how you had set yourself up when the police arrested you, with the plate switchers, with those weapons on you.'[31]

    [28] ts 58 (18/3/16).

    [29] ts 59, 61 (18/3/16).

    [30] ts 60 (18/3/16).

    [31] ts 60 (18/3/16).

11. On 20 June 2016, the appellant appeared before the Chief Magistrate to be sentenced.  The prosecutor, in the presence of the appellant and his counsel, read the facts to the court in the following terms:[32]

    [T]he facts are that on 9 July a Misuse of Drugs Act search warrant was conducted at the accused's address in Leeming. He was present at the time. During the search several items were located in the house. In the master bedroom, which was occupied by the accused and his partner, were located approximately 10 grams of cannabis material on the desk; glass smoking implements with white residue, believed to be amphetamine, in a desk drawer; electric shock, taser-type device in a BMW-type key ring setting on the bedroom floor near a safe used by the accused, who said he didn't know what the item was.

    In respect to the next group of charges, 7409, 08 and 07, the facts of those are that on 27 June 2015 the accused drove a vehicle on a road in Murdock and police spoke to him in relation to another matter.  While speaking to the accused the officers observed he was holding two fake vehicle registration plates.  The officers noted that the vehicle which the accused is the registered owner and the sole occupant of at the time had been fitted out with electronic number plate switchers on both its front and rear.  The number plate switcher was fully operational and fitted with fake registration plates.  Officers were able to operate the device by pressing a button situated near the vehicle's steering wheel.

    A search of the vehicle located a second number plate switcher inside a locked toolbox.  And he claimed ownership of that.  So we seek destruction of those.  While searching the vehicle police located a taser in the shape of an iPhone on the driver's seat next to the accused's wallet.  He said that it was a broken iPhone, but police were able to operate the taser and cause it to spark.  So we seek destruction of that.

    And, finally, possess with intent to sell and supply charge.  They've searched his person, and while searching police located a small plastic container in the accused's underwear.  The plastic container was seized and it contained four clip seal bags, three with a crystal substance inside.   Each of the three bags tested positive to amphetamines.  The first bag contained approximately 2.77 grams.  The second bag weighed approximately 0.42 grams.  The third weighed approximately 0.89 grams.  That's a total of 3.99 grams.

    While searching the accused's vehicle the police located a mobile phone that the accused identified as belonging to him.  That was downloaded and police located numerous messages (indistinct) phone, the incoming and outgoing function.   The messages related to the accused's involvement in the sell and supply of drugs.  A search of the accused's wallet located $920 which he could not account for.  They're the facts, sir.  I seek orders for destruction, and costs of $158.

    [32] ts 2 ‑ 3 (20/6/16).

12. At that hearing on 20 June 2016, the appellant's counsel presented a detailed plea in mitigation.[33]

    [33] ts 3 ‑ 7 (20/6/16).

1. The appellant's counsel submitted to the Chief Magistrate that he had discussed the charge with his client and that he was willing to enter a plea of guilty.[34]  It was to be entered on the basis that 'in the event that a good mate would have asked him for some, he would have shared it'.[35]  The appellant's counsel also outlined the appellant's past history with using methylamphetamine.[36]  The mitigation outlined that the appellant had worked at the Kewdale Freight Terminal over a nine‑year period and that in 2007 he injured his hand.  In 2011 and 2012, the appellant had surgery which lead to 'complex regional pain syndrome'.[37]  In 2012, the appellant commenced using methylamphetamine for pain relief.[38]  Consequently, he became addicted and he had been using half a gram of methylamphetamine per day before the police apprehended him on 27 June 2015.[39]

   [34] ts 4 (20/6/16).

   [35] ts 4 (20/6/16).

   [36] ts 4 ‑ 5 (20/6/16).

   [37] ts 4 (20/6/16).

   [38] ts 4 (20/6/16).

   [39] ts 5 (20/6/16).

2. During the comprehensive plea in mitigation, counsel stated that the appellant had used methylamphetamine on one occasion since he pleaded guilty.[40]  Further, counsel told the Chief Magistrate that the appellant was 'on a path to rehabilitation and recovery' and submitted that an intensive supervision order or a conditionally suspended imprisonment order was the appropriate disposition.[41]

   [40] ts 5 ‑ 6 (20/6/16).

   [41] ts 5 (20/6/16).

3. The Chief Magistrate in his sentencing remarks made, in part, the following findings:[42]

   This was a matter that involved the supply of amphetamine which is of great concern within the community at the moment.  Your vehicle at the time you were stopped was fitted with a device to switch your number plates and you were in possession of a taser at the time.

   All of which indicate that there was a degree of planning with respect to your involvement, and the presence of telephones.  Although you were the sole occupant of the car and you say the phones were not yours, it is coincidental then that there were messages concerning the sale of drugs on those phones.

   [42] ts 7 (20/6/16).

4. As I have observed, the appellant appealed the sentence imposed by the Chief Magistrate but did not commence this appeal against the conviction until 14 months after pleading guilty to the charge and 7 months after being sentenced.

5. There is no evidentiary basis to find that the appellant did not understand the charge or that he did not intend to plead guilty.  Further, there is no evidentiary basis that the appellant was not in possession of all relevant facts and materials.  To the contrary, the appellant, represented by counsel who clearly had received detailed instructions regarding the entry into the Drug Court, pleaded guilty to the charge which gave full particularisation of the allegation.  The appellant made an application to enter the Drug Court program and his counsel made comprehensive submissions in support.[43]  The appellant's counsel submitted to Magistrate Campione that the appellant had taken into consideration all information provided at the Drug Court information session.[44] 

   [43] ts 2 ‑ 11 (9/11/15).

   [44] ts 2 (9/11/15).

6. A final contention of the appellant under the rubric of ground 3 is that he only pleaded guilty in order to be admitted to the Drug Court program and further, that his counsel told him that he would not be believed over the police who arrested him.  The appellant was represented by counsel, understood the charge, the facts upon which he was pleaded and actively sought to be admitted to the Drug Court program.  That the appellant would plead guilty to the charge was most understandable given that he was caught red‑handed possessing amphetamine.  In any event, 'reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty.'[45]  There is no miscarriage of justice.

   [45] Snook v The State of Western Australia [No 2] [105].

7. This ground is without merit.

Ground 1

1. By ground 1 the appellant asserts that the police used threats, improper inducement and intimidation to obtain his plea of guilty.  Further, the appellant asserts that the police assaulted him.  The appellant, in support, attaches to his affidavit six miniature photographs that appear to depict skin with a red mark.[46]  It is not possible to determine with any certainty what is depicted.  The providence of the photographs is not proven. 

   [46] Affidavit of Appellant sworn 18 January 2017, 11 ‑ 16.

2. A medical certificate is attached purportedly signed by Dr Karivandan dated 10 July 2015 stating that the accused self‑reported that the police 'injected something/some fluid on his back'.[47]  The type font on the medical certificate is noticeably different in places.  The medical certificate does not provide any evidentiary basis to support the appellant's claim of being assaulted by the police. 

   [47] Affidavit of Appellant sworn 18 January 2017, 10.

3. In any event, the appellant does not explain how anything alleged to have occurred on the date of arrest led to him pleading guilty.  The appellant alleges that he was intimidated and assaulted at the time of arrest being 27 June 2015.  He pleaded guilty on 9 November 2015.

4. As I have observed, throughout the proceedings counsel represented the appellant.  At no time were the allegations raised. 

5. There is no evidentiary basis for this ground of appeal.  The ground is wholly without merit.

Ground 2

1. By ground 2 the appellant contends that the police 'fraudulently made several statements' in the statement of material facts.  In the appellant's affidavit sworn 18 January 2017, the appellant recites various paragraphs of the statement of material facts and contends that they were false particulars.[48]  The appellant was required to plead guilty to the facts that were presented to the court.  Before the Chief Magistrate, the appellant did not demur from the facts, and counsel presented a plea based on the facts that were presented.

   [48] Affidavit of Appellant sworn 18 January 2017, 17 ‑ 22.

2. The transcript of the proceedings of 9 November 2015 and 20 June 2016 discloses that the appellant did not seek any further information regarding the facts, nor dispute the facts. 

3. On 18 March 2016, the appellant's counsel made submissions in respect to the indicated sentence.  Counsel observed that in the psychological report the appellant reported that he was not accepting some of the facts.  The author of the psychological report stated that the appellant contended that he was not selling or supplying the prohibited drug.  Further, that the drug paraphernalia at his residence belonged to a third person and that the taser was used to make a spark for fire.[49]  During that hearing the appellant personally made submissions regarding the facts, contending that the taser was not a proper taser device given that it only was 3.1 volt.[50]  Her Honour observed that 'now is not the time for that information to be challenged.  It should have been done a while ago.'[51]

   [49] Psychological Report dated 13 December 2015 [6.2].

   [50] ts 61 (18/3/16).

   [51] ts 61 (18/3/16).

4. As I have observed at the sentencing hearing on 20 June 2016 the appellant's counsel submitted that the appellant accepted that he was supplying the prohibited drug.[52]  The facts were accepted by the appellant. 

   [52] ts 4 (20/6/16).

5. The appellant in his affidavit merely makes assertions.  There is no evidentiary basis for the assertions that the facts to which the appellant pleaded guilty comprised any falsehoods or that he did not understand the facts to which he pleaded guilty.  There is no merit in ground 2.

Ground 4

1. By ground 4 the appellant contends that the 'police failed to investigate and look into crucial information that would have dramatically reduced the culpability of the appellant.'[53]  The reasoning is based on the erroneous submission that the appellant handed another person's drivers' licence at the time of arrest to show that they had used the car in the previous three months.[54]

   [53] Affidavit of Appellant sworn 18 January 2017, 32.

   [54] Affidavit of Appellant sworn 18 January 2017, 32.

2. The appellant was caught red-handed with amphetamine secreted in his underwear.  He pleaded to that fact.  That another person may have used the car he was driving (at the time of his arrest) in the three months prior to apprehension is irrelevant.  There is no merit in this ground of appeal.

Conclusion

1. There is no merit in any of the grounds of appeal.  There will be no miscarriage of justice if the application for an extension of time in which to appeal is not granted.  Accordingly, I do not grant an extension of time in which to appeal and therefore the appeal is taken as dismissed.