Wilson v The State of Western Australia
[2025] WASCA 8
•15 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WILSON -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 8
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 20 NOVEMBER 2024
DELIVERED : 15 JANUARY 2025
FILE NO/S: CACR 127 of 2023
BETWEEN: BJORN ANDREW WILSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: FLYNN DCJ
File Number : IND GER 49 of 2022
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of seven counts of violence in relation to his former partner - Whether the primary judge erred in concluding that the appellant's pleas of guilty on some of the counts were not entered or indicated at the first reasonable opportunity - The relevance of alleged forensic prejudice to the appellant had he entered or indicated pleas of guilty any earlier - Whether the discount allowed by the primary judge for the pleas of guilty on some of the counts was manifestly inadequate - Whether the total effective sentence of 7 years' imprisonment infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 68, s 300(1), s 304(1)(b), s 317(1)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | K Kumar |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Oswald Legal (Joondalup) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465
Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176
Bropho v Hall [2015] WASC 50
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Curry v The State of Western Australia [2022] WASCA 36
Duncan v The State of Western Australia [2018] WASCA 154
Gallop v The State of Western Australia [2007] WASCA 243
Gobetti v The State of Western Australia [2017] WASCA 130
Gomboc v The State of Western Australia [2023] WASCA 115
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Hishmeh v The State of Western Australia [2012] WASCA 183
Jolly v The State of Western Australia [2017] WASCA 181
Kabambi v The State of Western Australia [2019] WASCA 44
Law v The State of Western Australia [2009] WASCA 193
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
Luff v The State of Western Australia [2008] WASCA 89
Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99
MYB v The State of Western Australia [2024] WASCA 53
Rinaldi v The State of Western Australia [2017] WASCA 48
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Savory v The State of Western Australia [2018] WASCA 165
SCN v The State of Western Australia [2017] WASCA 138
The State of Western Australia v Chungarai [2021] WASCA 147
The State of Western Australia v Riley [2024] WASCA 11
The State of Western Australia v Winch [2024] WASCA 79
Thomas v The State of Western Australia [2014] WASCA 202
BUSS P & MAZZA JA:
The appellant appeals against sentence.
The appellant was convicted, on his pleas of guilty, of seven counts in an indictment dated 5 September 2023 (the 2023 indictment). The victim in respect of all of the counts was the appellant's former partner. All of the counts concerned the appellant's acts of violence against the victim between March 2015 and November 2020 during the subsistence of their relationship.
The counts alleged:
(a)Count 1: between 25 March 2015 and 2 November 2020 at Binnu and elsewhere the appellant persistently engaged in family violence against the victim, contrary to s 300(1) of the Criminal Code (WA) (the Code).
(b)Count 2: on a date unknown between 22 December 2016 and 30 December 2016 at Binnu the appellant unlawfully assaulted the victim and thereby did her bodily harm, and the appellant was in a family relationship with the victim, contrary to s 317(1) of the Code.
(c)Count 3: on 5 August 2017 at Binnu the appellant unlawfully assaulted the victim and thereby did her bodily harm, and the appellant was in a family relationship with the victim, contrary to s 317(1) of the Code.
(d)Count 4: on a date unknown between 31 March 2018 and 1 October 2018 at Binnu the appellant unlawfully did an act as a result of which the life, health or safety of the victim was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code.
(e)Count 5: on a date unknown between 31 May 2019 and 1 July 2019 at Binnu the appellant unlawfully did an act as a result of which the life, health or safety of the victim was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code.
(f)Count 6: on a date unknown between 31 August 2020 and 1 October 2020 at Binnu the appellant was armed with a dangerous weapon, namely a firearm, in circumstances likely to cause fear to the victim, contrary to s 68 of the Code.
(g)Count 7: on the same date and at the same place as in count 6, the appellant unlawfully did an act as a result of which the life, health or safety of the victim was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code.
The maximum penalty for count 1 is 14 years' imprisonment. The maximum penalty for each of the other counts is 7 years' imprisonment.
On 8 September 2023, Flynn DCJ sentenced the appellant.
His Honour imposed individual sentences of immediate imprisonment as follows:
(a)Count 1: 2 years 6 months.
(b)Count 2: 12 months.
(c)Count 3: 4 months.
(d)Count 4: 2 years.
(e)Count 5: 12 months.
(f)Count 6: 18 months.
(g)Count 7: 12 months.
The primary judge ordered that the individual sentences for counts 1, 2, 4 and 6 be served cumulatively upon each other and that the individual sentences for the other counts be served concurrently with each other and concurrently with the individual sentence for count 1. The total effective sentence was therefore 7 years' imprisonment. His Honour backdated the total effective sentence to 26 August 2023 to take account of time the appellant had spent in custody in respect of the offences. A parole eligibility order was made.
The appellant relies upon three grounds of appeal.
Ground 1 alleges, in essence, that his Honour erred in concluding that the appellant's pleas of guilty on counts 1, 2, 3, 4 and 7 were not entered or indicated at the first reasonable opportunity in that his Honour failed to take into account the existence of relevant forensic prejudice to the appellant had he entered or indicated pleas of guilty any earlier.
Ground 2 alleges, in essence, that the discount allowed by his Honour, pursuant to s 9AA of the Sentencing Act 1995 (WA), for the plea of guilty on each of counts 1, 2, 3, 4 and 7 was manifestly inadequate.
Ground 3 alleges, in essence, that the total effective sentence of 7 years' imprisonment infringed the first limb of the totality principle.
We agree with Hall JA that leave to appeal should be refused and the appeal dismissed. We agree with his Honour's reasons on ground 3. We will state our own reasons on grounds 1 and 2.
The facts and circumstances of the offending, the appellant's personal circumstances and antecedents, the primary judge's sentencing remarks and the submissions of the parties in the appeal
The facts and circumstances of the offending, the appellant's personal circumstances and antecedents, the primary judge's sentencing remarks and the submissions of the parties in the appeal are summarised in the reasons of Hall JA. We will not repeat his Honour's summary except to the extent necessary to explain our reasons.
The procedural history including the timing of the entry or indication of the appellant's pleas of guilty
An overview of the chronological history of the progress of the charges against the appellant in the Magistrates Court and the District Court is set out in the following table:
Date
Occurrence
12 July 2021
Appellant arrested and charged with offences against the victim
13 July 2021
1st appearance, Magistrates Court
21 April 2022
12th appearance, Magistrates Court
Committed for trial to the District Court
27 July 2022
1st Trial Listing Hearing, District Court
14 November 2022
Indictment dated 14 November 2022 (the 2022 indictment) filed containing 11 counts
16 November 2022
2nd Trial Listing Hearing, District Court
11 January 2023
3rd Trial Listing Hearing, District Court
5‑day trial listed as priority one for the week commencing 4 September 2023
25 July 2023
Email sent by the appellant's defence counsel to the State regarding the potential for resolution of the matter via plea negotiations
4 September 2023
Callover date, District Court (Geraldton Circuit)
Adjourned for further negotiations
5 September 2023
Indictment dated 5 September 2023 (the 2023 indictment) filed containing seven counts
7 September 2023
Sentencing hearing before Flynn DCJ, District Court (Geraldton)
8 September 2023
Appellant sentenced by Flynn DCJ, District Court (Geraldton)
The State filed an indictment dated 14 November 2022 (the 2022 indictment) which contained 11 counts. Nine of the counts alleged that the appellant had committed domestic violence offences against the victim. The other two counts alleged that the appellant had committed offences contrary to s 304(1)(b) of the Code against the victim's 16 year old son (counts 2 and 3 in the 2022 indictment).
After negotiations between late July 2023 and early September 2023 that were initiated by the appellant's defence counsel:
(a)the appellant agreed to plead guilty to seven counts that were incorporated in the 2023 indictment;
(b)the State agreed to discontinue the two counts in the 2022 indictment that alleged offences against the victim's 16 year old son;
(c)the State agreed to discontinue two other counts in the 2022 indictment that alleged offences of aggravated threats to kill the victim (counts 6 and 9 in the 2022 indictment); and
(d)a new offence of being armed with a dangerous weapon in circumstances likely to cause fear to the victim was included as count 6 in the 2023 indictment in substitution for a count in the 2022 indictment that alleged an aggravated threat to kill the victim (count 10 in the 2022 indictment).
The effect of the negotiations was as follows:
(a)Count 1 was in both the 2022 indictment and the 2023 indictment. However, there were significant changes to the facts of count 1 (which alleged that the appellant persistently engaged in family violence against the victim) in that the number of particularised incidents relied upon by the State was reduced from 19 incidents to six incidents.
(b)The charges in counts 2 and 4 were in both the 2022 indictment and the 2023 indictment. The facts relied upon by the State in support of those counts were unchanged.
(c)The charges in counts 3 and 7 were in both the 2022 indictment and the 2023 indictment. However, there was some amendment of the facts relied upon by the State in support of those counts.
(d)Count 5 in the 2023 indictment was not in the 2022 indictment.
(e)Count 6 in the 2023 indictment was not in the 2022 indictment.
Defence counsel's submissions to the primary judge in relation to the timing of the entry or indication of the appellant's pleas of guilty
Counsel for the appellant in the appeal was different from defence counsel at the sentencing hearing.
Defence counsel said in his written submissions to the primary judge, in support of his contention that the appellant was remorseful for his offending, that:
The [appellant] has engaged with the Men's Community Intervention Service since … 28 January 2021, post relationship, but prior to any charges being laid, in a sincere and protracted attempt to address the causes of his offending and to avoid any future repetition of like offending within a relationship.
Defence counsel also said in his written submissions, in relation to the appellant's risk of reoffending and prospects of rehabilitation, that 'the offences are not reflective of an ongoing or underlying propensity to domestic violence and are … not indicative of a future repetition of such … behaviour against any other person'.
Defence counsel contended in his written submissions that 'counts 5 and 6 were offered [by the State] for plea for the first time in the [2023 indictment] and as a matter of fact [the appellant] entered guilty pleas to these counts at the earliest reasonable opportunity'.
Defence counsel did not make that contention in relation to the pleas of guilty on the other counts in the 2023 indictment, either in his written or in his oral submissions.
In his oral submissions, defence counsel sought to explain the tension between his contention that the appellant was remorseful and had good prospects of rehabilitation, on the one hand, and the appellant's delay in entering or indicating pleas of guilty to numerous of the counts, on the other, by suggesting that the appellant had 'acted like an ostrich and buried his head in the sand' and that the appellant 'genuinely realised his culpability in a personal, subjective sense, but did not have sufficient breadth of insight and empathy with the victim … to relieve her of the burden of the pressure … of one day having to stand up in a court of law and give evidence and be cross‑examined' (ts 50).
A little later, defence counsel said (ts 50 ‑ 51):
So in relation to remorse and rehabilitation, your Honour has the paradox that we've touched upon … that despite knowing his culpability and seeking to address it and ensure it didn't repeat, he lacked the insight to enter guilty pleas at an earlier stage. I don't think I can dress it up in any other way.
Defence counsel is a competent and very experienced criminal defence lawyer.
The primary judge's discounts for the pleas of guilty
The primary judge reduced the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act) for each of the counts, pursuant to s 9AA, in recognition of the appellant's pleas of guilty. His Honour allowed these discounts:
(a)Count 1: 15%.
(b)Count 2: 5%.
(c)Count 3: 10%.
(d)Count 4: 5%.
(e)Count 5: 25%.
(f)Count 6: 25%.
(g)Count 7: 10%.
His Honour's rationale for allowing the discounts was as follows (ts 84 ‑ 85):
Now, your counsel initiated negotiations in July this year, but an agreement was not reach[ed]. Not long before the first day of trial, negotiations recommenced and they were successful. An amended indictment was filed.
The result was that compared to the 11 counts on the original indictment, there were now seven counts to which … you pleaded guilty. … [A]s a result of that plea, there is a benefit to the State and to witnesses and I will reduce your sentence to recognise those benefits. The benefit to the State comes from a saving in the resources of the State, court time, lawyer's time, but there is another benefit, and that's in the form of a certain outcome. The outcome of any trial would have hinged on the jury assessment of the credibility of the evidence of [the victim]. And the outcome was not certain.
There is another benefit to [the victim]: she is not required to endure the anxiety that comes from giving evidence and from awaiting the outcome of a trial. A number of her children, now young adults or younger, were present for some of your offending. They were to be witnesses at the trial. They have been similarly spared having to endure a trial. I weigh those benefits. In relation to the persistently engaging in family violence offence, I note that that was on the original indictment and it remained on the amended indictment.
But I also note that the number of acts of family violence had been reduced from an allegation of 19 to a number, namely, six. Weighing that, I reduce the sentence that I would otherwise have imposed before taking into account anything else by 15 per cent. In relation to counts 2 and 4, both of those charges were on the original indictment. They remained on the indictment to which you pleaded guilty and the facts are unchanged. I reduced the sentence I would otherwise have imposed for those counts by five per cent.
In relation to counts 3 and 7, both of those charges were on the original indictment and they remain on the amended indictment, but the facts have been amended. I reduce the sentence that I would otherwise have imposed for those counts by 10 per cent. Count 5, a charge of an act that is likely to endanger the life, health and safety of [the victim], was not on the original indictment. The original indictment included a more serious offence ‑ in effect, the same offence but with an intention. Effectively, when you pleaded guilty, that was the first reasonable opportunity to do so. I've reduced the sentence that I would have otherwise imposed for that offence by the sum of 25 per cent.
The same applies with respect to count … 6 ‑ that is, there will be a 25 per cent reduction, given that you had the first reasonable opportunity to plead when you did to that offence.
Ground 1: counsel for the appellant's submissions
Counsel for the appellant submitted that the primary judge erred in concluding that the appellant's pleas of guilty on counts 1, 2, 3, 4 and 7 were not entered or indicated at the first reasonable opportunity in that his Honour failed to take into account the existence of relevant forensic prejudice to the appellant had he entered or indicated pleas of guilty any earlier.
It was submitted that an 'obvious and relevant forensic prejudice' to the appellant, had he entered or indicated any pleas of guilty any earlier, would have been the State's inevitable reliance upon the consequent convictions, including the facts underpinning the convictions and the appellant's admissions of the offending conduct, as propensity evidence in any trial of the appellant on the remaining counts.
Counsel argued that the primary judge's failure to consider this forensic prejudice resulted in erroneous findings of fact in relation to whether the appellant's pleas of guilty on counts 1, 2, 3, 4 and 7 were entered or indicated at the first reasonable opportunity, and materially affected the sentences that were imposed on the appellant.
Counsel sought to rely upon observations made by Ipp J in Atholwood v The Queen[1] in support of her submissions on ground 1.
[1] Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465 [10].
Ground 1: its merits
In Atholwood, the offender was convicted of cultivating cannabis plants with intent to sell or supply and was sentenced to 2 years 9 months' imprisonment. He appealed against sentence. One ground of appeal concerned the sentencing judge's approach to the plea of guilty. Another ground concerned the factual basis on which the sentencing judge sentenced the offender.
As to the ground concerning the sentencing judge's approach to the plea of guilty, the offender was originally charged on an indictment containing five counts. Three of the counts related to cannabis. On the day before his trial was due to begin, the offender agreed to plead guilty to one of the counts relating to cannabis and the prosecution agreed to discontinue the other counts relating to cannabis. The remaining two counts, which were unrelated to cannabis, were adjourned for a separate trial. The sentencing judge accepted that the plea of guilty provided some mitigation, but 'in the circumstances, coming as late as it did, its mitigation is somewhat minor'.
As to the ground concerning the factual basis on which the sentencing judge sentenced the offender, the prosecution accepted that the offender's role in cultivating the cannabis plants was 'house‑sitting' the plants for a few weeks. However, the sentencing judge said that she did not accept that the offender was merely a 'house‑sitter'.
The Court of Criminal Appeal (Malcolm CJ, Ipp and Wallwork JJ) allowed the offender's appeal and resentenced him.
Wallwork J (Malcolm CJ agreeing) recounted at length the sentencing judge's sentencing remarks and counsel for the offender's submissions in the appeal. However, his Honour did not analyse either of the grounds of appeal. His Honour merely referred to a previous decision of the Court of Criminal Appeal on the sentencing of an offender for cultivating cannabis plants, and then said that 'looking at the matter from an overall point of view, an appropriate sentence in this case would have been a sentence of imprisonment for one year with eligibility for parole' [44].
Ipp J agreed with the reasons of Wallwork J, but added some further observations.
Ipp J said that the appeal should succeed on both of the grounds.
As to the ground concerning the sentencing judge's approach to the plea of guilty, Ipp J said that '[w]here the prosecution has charged an offender with several counts and after a process of negotiation the offender pleads guilty to only some of them and the prosecution withdraws the others, all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled' [10].
His Honour then said [10]:
It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts with which he is charged to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.
Ipp J was of the opinion that in the case under consideration the particular circumstances surrounding the making of the plea of guilty were such that a greater discount should have been given to the offender for that plea. His Honour elaborated [11] ‑ [12]:
The fact is that the appellant pleaded guilty to the offence of which he was convicted as soon as he was informed that it was the only charge he would be required to face. Counsel for the prosecution conceded that the plea of guilty was entered into after the appellant 'probably had first ever received something that approached sensible advice in this matter'. In my view, it is unrealistic to suggest that the appellant should have pleaded guilty to the charge of cultivating cannabis (of which he was convicted) at a stage when he was facing two other like charges which were subsequently withdrawn. The forensic disadvantages of such a course are obvious and one can well understand the appellant maintaining a plea of not guilty to all counts (until withdrawal occurred), despite personally acknowledging full responsibility for his criminal conduct in regard to one of them and being properly remorseful in regard thereto.
In these circumstances, in my view, the appellant was entitled to a greater discount for his plea of guilty than that accorded to him by her Honour.
As to the ground concerning the factual basis on which the sentencing judge sentenced the offender, Ipp J said that the sentencing judge's view of the facts relating to the offender's role in the cultivation of the cannabis was not open, and the offender's criminality was significantly less than that assumed by her Honour.
In Cameron v The Queen,[2] the offender was charged with possessing a prohibited drug, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The offender was charged on 22 April 1999. The complaint identified the prohibited drug as MDMA. However, when the substance in the offender's possession was analysed it was found to be methylamphetamine. The analyst's certificates in relation to the substance being methylamphetamine were dated 28 June 1999. On 10 November 1999, the offender's lawyer wrote to the Director of Public Prosecutions (WA) indicating that the offender wished to enter a plea of guilty to the charge of possession of a prohibited drug with intent to sell or supply. The letter noted that the complaint as then drafted was incorrect and should be amended to identify correctly the drug that was in the offender's possession. On 17 November 1999, the complaint was amended accordingly. The offender then entered a plea of guilty in the Perth Court of Petty Sessions and was committed to the District Court for sentence.
[2] Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339.
The sentencing judge reduced the sentence he would otherwise have imposed on the offender by 10% on account of the plea of guilty. At that time the judicial practice in Western Australia was for sentences to be reduced by between 20‑35% for an early plea of guilty. The Court of Criminal Appeal dismissed the offender's appeal against sentence.
On appeal to the High Court, the offender contended that he had pleaded guilty at the first reasonable opportunity and that in the circumstances the sentence he received was excessive. A majority of the High Court (Gaudron, Gummow, Kirby and Callinan JJ; McHugh J dissenting) held that the offender could not have been expected to have pleaded guilty before the complaint was amended to identify correctly the substance he had in his possession. Consequently, the sentencing judge had not considered the mitigating circumstances properly when he sentenced the offender. The majority allowed the appeal.
Gaudron, Gummow and Callinan JJ set out at [21] the passage from the reasons of Ipp J in Atholwood which we have quoted at [40] above. Their Honours then said at [22] that those remarks of Ipp J 'reflect what has earlier been said in relation to the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice'. Their Honours then said that 'once that rationale is accepted, [the State's] suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not on a "fast‑track" plea must be rejected'. Their Honours explained [22]:
Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity.
Gaudron, Gummow and Callinan JJ proceeded to consider whether in the case under consideration the offender had entered his plea of guilty at the first reasonable opportunity [23] ‑ [25]:
Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.
More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance.
The Court of Criminal Appeal was in error in holding that the appellant could have pleaded guilty before the charge was amended to correctly specify the substance which he had in his possession. Moreover, it was in error in stating that there had been 'no saving in the Magistrates Court' for the appellant's plea of guilty rendered a preliminary hearing unnecessary.
The reasons of the plurality in Cameron are authority for the proposition that, at common law, the rationale underpinning a reduction in sentence for a plea of guilty is that the plea reflects remorse, an acceptance of responsibility and a willingness to facilitate the course of justice. At common law, the stage in the proceedings when a plea of guilty is entered or indicated is relevant in assessing the nature and extent of the offender's remorse, acceptance of responsibility and willingness to facilitate the course of justice. See Gallop v The State of Western Australia.[3]
[3] Gallop v The State of Western Australia [2007] WASCA 243 [14] (Steytler P; McLure & Miller JJA agreeing).
The plurality in Cameron did not comment about Ipp J's observations on the relevance of 'forensic prejudice' in evaluating when it was first reasonably open to an offender to plead guilty.
In Hishmeh v The State of Western Australia,[4] Martin CJ (Buss and Mazza JJA agreeing) referred to the passage from the reasons of Ipp J in Atholwood which we have quoted at [39] ‑ [40] above. Martin CJ said that the passage stands for the proposition that 'all the relevant circumstances have to be examined with care in order to establish the credit to which [an offender who has pleaded guilty] is entitled' [55]. Like the plurality in Cameron, his Honour did not comment upon Ipp J's observations on the relevance of 'forensic prejudice' in evaluating when it was first reasonably open to an offender to plead guilty. Martin CJ's approach is consistent with other decisions of this court which have not applied Ipp J's observations on 'forensic prejudice'. See Luff v The State of Western Australia;[5] Gallop [14]; Rossi v The State of Western Australia.[6] See also Savory v The State of Western Australia;[7] Higgins v The State of Western Australia.[8]
[4] Hishmeh v The State of Western Australia [2012] WASCA 183 [54].
[5] Luff v The State of Western Australia [2008] WASCA 89 [25] ‑ [29] (Miller JA; Steytler P & McLure JA agreeing).
[6] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [39] (McLure P; Mazza JA & Hall J agreeing).
[7] Savory v The State of Western Australia [2018] WASCA 165 [50] (Buss P, Mazza and Beech JJA).
[8] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [132] (Beech JA; Buss P & Pritchard JA relevantly agreeing).
Section 9AA of the Sentencing Act was inserted by s 4 of the Sentencing Amendment Act 2012 (WA). It commenced on 20 December 2012.
In his Second Reading Speech on the Bill which became the Sentencing Amendment Act 2012, the Attorney General outlined the purpose sought to be achieved by the introduction of s 9AA as follows:[9]
Currently in Western Australia, cases suggest that an early plea of guilty may attract a reduction in sentence of between 20 per cent and 35 per cent depending on the circumstances. However, the trend has been for a standard discount of 25 per cent to be given for a plea of guilty, and not only for one at the earliest reasonable opportunity. Limiting the discount available for a plea of guilty will assist with addressing community disquiet about the sentencing process.
The Sentencing Amendment Bill 2012 addresses the issue by doing five things. It recognises that an offender can obtain a discount from the sentence that he or she might otherwise serve if the offender pleads guilty; it sets out the rationale for the discount—namely, that it is to recognise the benefits to the state and to any victim of, or witness to, the offence; it limits that discount to a maximum of 25 per cent off the sentence that an offender would otherwise serve; it ensures that the maximum discount will only be granted if there is a plea, or an indication of a plea, at the first reasonable opportunity; and it requires the court to state the fact of, and the extent of, any reduction.
The 'cap' on the discount does not prevent the court from reducing the head sentence by reason of other legitimate mitigating factors.
[9] Western Australia, Parliamentary Debates, Legislative Council, 16 August 2012, p 5102a.
So, the legislative purpose of introducing s 9AA, as stated by the Attorney General in his Second Reading Speech, was, relevantly:
(a)to specify that the rationale for discounting a sentence on account of a plea of guilty is recognition of the benefits to the State and to any victim of, or witness to, the offence occasioned by the plea;
(b)to limit the discount to a maximum of 25%; and
(c)to ensure that the maximum discount is only granted if the offender enters or indicates the plea at the first reasonable opportunity.
The legislative rationale in s 9AA for reducing a sentence on account of a plea of guilty (as explained by the Attorney General and as apparent from the text) is materially different from the common law rationale (as explained by Gaudron, Gummow and Callinan JJ in Cameron). In particular, the legislative rationale in s 9AA is recognition of the benefits to the State and to any victim of, or witness to, the offence occasioned by the plea whereas the common law rationale is that the plea reflects remorse, an acceptance of responsibility and a willingness to facilitate the course of justice.
Section 9AA of the Sentencing Act provides:
(1)In this section —
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if —
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) —
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.
Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.
Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA. See Abraham v The State of Western Australia.[10]
[10] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [52] (Buss JA; McLure P agreeing).
However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by those matters. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors or criteria relating to the offender that are subjective to the offender. See Abraham [53].
If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%.
However, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'. The making or the indication of a plea of guilty at 'the first reasonable opportunity' enlivens the power to grant the maximum discount. If the power is enlivened, the sentencing judge is not bound to give a 25% discount. The sentencing judge's discretion is informed by the considerations specified in s 9AA(2). See Thomas v The State of Western Australia.[11] The phrase 'the first reasonable opportunity' in s 9AA is not defined in the Sentencing Act.
[11] Thomas v The State of Western Australia [2014] WASCA 202 [18] (McLure P; Mazza JA agreeing).
Rossi is the leading authority on the proper construction and effect of the phrase 'the first reasonable opportunity' in s 9AA.
The salient facts of Rossi, for present purposes, were these. The appellant pleaded guilty to six counts in Indictment 790 of 2013 (Indictment 790). Between 17 October 2012 and 19 December 2012, police lawfully intercepted a mobile telecommunication service which belonged to and was used by the appellant. The counts in Indictment 790 were established by the intercepted material. Count 3 involved the sale of methylamphetamine. The other counts involved offers to sell methylamphetamine. The statement of material facts served on the appellant set out the precise time and date on which each offence was committed.
On 11 February 2013, the appellant in Rossi was charged in the Perth Magistrates Court with the offences which became the subject of Indictment 790. On 28 June 2013, after the fourth or fifth disclosure/committal hearing, the appellant entered pleas of guilty to the offences in Indictment 790. He was committed to the District Court for sentence.
The sentencing judge in Rossi indicated that he had reduced the 'head sentence', as defined in s 9AA(1), for each offence by 12.5%, being one half of the maximum allowed under s 9AA, in recognition of the appellant's pleas of guilty.
The appellant in Rossi appealed against the sentences imposed by the sentencing judge. He relied on two grounds of appeal. The ground that is relevant, for present purposes, alleged that the sentencing judge erred in law by failing to give a sufficient discount, pursuant to s 9AA, for the appellant's pleas of guilty to the offences charged in Indictment 790.
Counsel for the appellant in Rossi alleged, relevantly for present purposes, that:
(a)the sentencing judge made an error of fact in failing to find that the appellant's pleas of guilty were entered at 'the first reasonable opportunity'; and
(b)the discount of 12.5% given by the sentencing judge was manifestly inadequate.
Counsel for the appellant in Rossi submitted in relation to the phrase 'the first reasonable opportunity' in s 9AA that:
(a)the appellant had entered his pleas of guilty to the 'offer to sell' charges at the first reasonable opportunity; and
(b)on the facts of the case, the first reasonable opportunity was 'a reasonable time after the supply by the State of the covert listening product on which the charges were based, which information was necessary to enable the appellant's legal representative to advise in relation to the appellant's plea to the charges' [28].
In Rossi, McLure P noted that the opportunities to plead guilty to a charge for an offence are governed by the Criminal Procedure Act 2004 (WA). After examining the statutory scheme embodied in the Criminal Procedure Act, her Honour concluded that 'the first opportunity for an accused to plead guilty to a charge for an indictable offence is after s 39(a) ‑ (c) of [the Criminal Procedure Act] has been complied with' [52]. Her Honour added that '[t]hat is what is known as a "fast‑track" plea' [52].
Significantly, her Honour then said [53]:
However, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion.
McLure P accepted two submissions made by counsel for the appellant about the relationship between s 9AA and the Criminal Procedure Act. First, 'often, but not in every case, the first reasonable opportunity for an accused person to plead guilty will be after the statutory requirements in s 35(4), (5), (6), (11) and (12), where applicable, [of the Criminal Procedure Act] have been satisfied' [68]. Secondly, 'that would not be the case if the reason for not pleading guilty at an earlier stage, and the related loss of relevant benefits under s 9AA, is due to the conduct of the State' [68].
However, her Honour did not accept other submissions made by counsel for the appellant [69] ‑ [70]:
The appellant's third proposition is that the legislature has recognised in (relevantly) s 39 of the [Criminal Procedure Act] that before an accused person enters a plea to an offence with which they have been charged they are entitled to know and understand the charge in the prosecution notice (notice), to have had time to consider the notice and to seek legal advice about it, and to be advised of the relevant procedures that may be invoked as a consequence of being charged. That is a fair summary of s 39 which addresses the subjective circumstances of the accused at the time of the hearing. However, the criterion of 'first reasonable opportunity' is objective. An accused cannot sit back and fail to take the necessary steps to put himself in a position to plead.
The appellant also contends that where an accused does not know that they are guilty of the offence charged because they do not know the facts that make up every element of the offence, it cannot be concluded mechanically, if the accused pleaded guilty at a later stage in the proceedings, that the plea was not entered at the first reasonable opportunity. This statement is too broad. It depends on what is meant by knowledge and the reason for the claimed lack of knowledge. (emphasis added)
Next, McLure P dealt with the submission of counsel for the appellant that the appellant had pleaded guilty at 'the first reasonable opportunity' [71] ‑ [76]:
The appellant claims it was reasonable for the appellant not to plead guilty before obtaining disclosure of the recorded telephone calls alleged to contain the offers the subject of the charges in Indictment 790 because the statement of material facts contained very little detail of the factual basis of the offences and only briefly summarised the effect of the telephone calls rather than set out what was actually said. Further the telephone calls relied on were amongst a number of telephone calls intercepted over the course of around two months.
The appellant also claims that it is irrelevant that the appellant may have been able to obtain copies of the recordings from police earlier in the proceedings, as police were not obliged to provide disclosure unless he elected to proceed to a committal hearing. I do not accept this submission. A failure to request access to the recordings is relevant, as is any failure to respond to, or refusal of, the request. There was no evidence that, prior to disclosure under the [Criminal Procedure Act], a request was made on behalf of the appellant of the investigating police or the DPP to listen to the records.
The appellant contends that this is not a case in which it can be concluded that disclosure of the recordings was sought to ascertain the strength of the prosecution case or that he held back pleading as a bargaining chip in plea negotiations.
At his sentencing, the appellant bore the onus of establishing matters of mitigation on the balance of probabilities. He fell well short of establishing that he entered pleas of guilty to the charges in Indictment 790 at the earliest reasonable opportunity.
The written and oral submissions put on behalf of the appellant at sentencing did not state with any precision or clarity that the appellant's delay in pleading guilty was because he did not know the facts that made up the elements of the offences the subject of Indictment 790. Such a submission would have been met with bewilderment, the appellant having been the principal (and sole) offender who must have had actual knowledge of all the material (and other) facts of his offending. At its very highest, any issue could only be one of recollection of detail.
Based on all the material before the sentencing judge, the compelling inference is that disclosure of the recordings was sought before entering a plea to any of the charges in order to ascertain the strength of the prosecution case. … It is on the strength of the prosecution case that the appellant may have required legal advice. (emphasis added)
Her Honour expressed her conclusions as follows [77]:
(a)The appellant pleaded guilty at the fourth or fifth disclosure/committal hearing.
(b)The sentencing judge did not err by failing to make a finding that the appellant's pleas of guilty to the counts in Indictment 790 were entered at the first reasonable opportunity.
(c)The appellant's pleas of guilty were not entered at the first reasonable opportunity.
McLure P then referred to counsel for the appellant's submission that the discount under s 9AA for the offences the subject of Indictment 790 should have been significantly higher than 12.5% [78]. Her Honour rejected that submission. Her Honour held that it could not be said that a discount of 12.5% for the offences the subject of Indictment 790 was at, or towards, the lower end of the discretionary range [82]. There was certainly no foundation for the claim that the discount was manifestly inadequate [82].
The reasons of McLure P in Rossi concerning the proper construction and effect of the phrase 'the first reasonable opportunity' in s 9AA have been referred to with approval in numerous decisions of this court. See, for example, Thomas [15]; Marshall v The State of Western Australia;[12] LJH v The State of Western Australia;[13] Rinaldi v The State of Western Australia;[14] Gobetti v The State of Western Australia;[15] SCN v The State of Western Australia;[16] Jolly v The State of Western Australia;[17] Brewerton v The State of Western Australia.[18]
[12] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99 [41] (Martin CJ; Hall J agreeing).
[13] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355 [45] (Martin CJ).
[14] Rinaldi v The State of Western Australia [2017] WASCA 48 [35] (Mazza & Mitchell JJA & Beech J).
[15] Gobetti v The State of Western Australia [2017] WASCA 130 [68] (Mazza JA & Hall J).
[16] SCN v The State of Western Australia [2017] WASCA 138 [90] (Buss P, Beech JA & Hall J).
[17] Jolly v The State of Western Australia [2017] WASCA 181 [26] (Buss P & Mazza JA).
[18] Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176 [48] (Martin CJ, Mazza & Mitchell JJA).
Where an offender is convicted on his or her plea of guilty, the plea necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. The plea also negatives all defences. A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence. A trial of issues may be necessary. See Law v The State of Western Australia.[19]
[19] Law v The State of Western Australia [2009] WASCA 193 [27] (Buss JA; McLure & Pullin JJA agreeing).
In the present case, ground 1 raises for consideration whether an offender will enter or indicate a plea of guilty to a charged offence at the 'first reasonable opportunity', within s 9AA, if the offender delays entering or indicating the plea for the purpose of securing a forensic advantage or avoiding a forensic disadvantage in relation to other charged offences.
Where an offender is charged with multiple offences, the focus of s 9AA is upon the timing of the entry or indication of the plea of guilty for each charged offence. Section 9AA does not operate by reference to the entry or indication of the offender's pleas of guilty to a combination of the charged offences.
An offender is, of course, entitled to delay entering or indicating a plea of guilty to a charged offence for any reason, including because the offender perceives that the delay will secure a forensic advantage or will avoid a forensic disadvantage in relation to other charged offences. The notion of 'forensic prejudice' referred to by Ipp J in Atholwood [10] encompasses securing a forensic advantage and avoiding a forensic disadvantage to an offender.
However, in our opinion, having regard to:
(a)the focus of s 9AA upon the timing or indication of the plea of guilty for each individual charged offence;
(b)the legislative rationale in s 9AA for reducing a sentence on account of the plea;
(c)the reality that delay in entering or indicating the plea will usually diminish the benefits to the State, and to any victim of or witness to the offence, resulting from the plea; and
(d)the maximum discount of 25% only being available if an offender enters or indicates the plea at the 'first reasonable opportunity',
the 'first reasonable opportunity', within s 9AA, for entering or indicating a plea of guilty to a charged offence must be determined by reference to all the facts and circumstances of the case in relation to the charged offence (as distinct from any other charged offences), including the alleged facts and circumstances of that offence, the offender's knowledge of the factual elements of that offence and the conduct of the State and the offender in relation to proceedings for that offence.
An offender will not act reasonably (within the concept of 'first reasonable opportunity' in s 9AA) in delaying the entry or indication of a plea of guilty to a charged offence if the object or effect of the delay is to secure a forensic advantage or to avoid a forensic disadvantage in relation to any other charged offences.
In the present case, counsel for the appellant's argument on appeal was that the primary judge made an error by failing to take into account, in deciding whether the appellant's pleas of guilty on counts 1, 2, 3, 4 and 7 were entered or indicated at the first reasonable opportunity, that the appellant would have suffered 'forensic prejudice' had he entered or indicated any pleas at an earlier stage, because the State would have relied upon the consequent convictions as propensity evidence in any trial of the appellant on the remaining counts.
Counsel for the appellant's argument is without merit. First, as we have explained, on a proper construction of s 9AA, an offender will not act reasonably (within the concept of 'first reasonable opportunity' in s 9AA) in delaying the entry or indication of a plea of guilty to a charged offence if the object or effect of the delay is to secure a forensic advantage or to avoid a forensic disadvantage in relation to any other charged offences. The appellant's explanation on appeal for his failure to enter or indicate a plea of guilty to each of counts 1, 2, 3, 4 and 7 at an earlier stage was, in essence, the avoidance of a forensic disadvantage in relation to other counts. Secondly, in any event, the primary judge did not make the alleged error because defence counsel contended and his Honour accepted that the appellant entered pleas of guilty on counts 5 and 6 at the first reasonable opportunity, but defence counsel did not make that contention in relation to any of the other pleas. Defence counsel's approach to and submissions on s 9AA before his Honour were inconsistent with the case sought to be run by the appellant on appeal. In particular, defence counsel did not submit that any delay by the appellant in entering or indicating the pleas of guilty was attributable to forensic prejudice. His Honour was entitled to make findings in relation to s 9AA based on the submissions that were put to him. His Honour did not make an error by failing to make other findings.
Ground 1 does not have a reasonable prospect of success. Leave to appeal on that ground should be refused.
Ground 2: counsel for the appellant's submissions
Ground 2 is in substance in the alternative to ground 1.
Counsel for the appellant submitted that each of the discounts allowed by the primary judge for the appellant's pleas of guilty to counts 1, 2, 3, 4 and 7 was unreasonable or plainly unjust having regard to the benefits to the State from not having to conduct a trial of the appellant on those counts and the benefit to the victim and her children from not having to give evidence.
It was submitted that the State's case against the appellant on counts 1, 2, 3, 4 and 7 was 'not strong' and hence, so it was submitted, the benefits to the State, the victim and her children were significant and those benefits had to be reflected in the discounts that were given.
Counsel noted that count 1 involved six prescribed acts of violence against the victim over a period of five years and that counts 2, 3, 4 and 7 involved instances of violence occurring over a period of four years. A trial would have been 'reliant on the victim giving evidence'. Her evidence would have occupied two days, during which the victim would have had 'to relive those five years of her life'. Prescribed act six of count 1 and count 4 occurred in the presence of the victim's children. The children, who were young adults when the trial was listed to begin, would have had to give evidence. Both the victim and her children would have had to recount in evidence at the trial events that had occurred more than three years previously. They would have been subject to cross‑examination in respect of those events. There was a risk that the cross‑examination could have caused them additional psychological trauma. The appellant's pleas of guilty avoided that risk.
Ground 2: its merits
In our opinion, counsel for the appellant's characterisation of the State's case on counts 1, 2, 3, 4 and 7 as 'not strong' is incorrect. At the sentencing hearing before the primary judge, the appellant accepted that the events described in the State's further amended statement of material facts had occurred. Those events were based primarily upon the victim's evidence.
In a letter dated 5 September 2023 from the appellant to his Honour, the appellant said:
I wish to express my deepest regret and apologies for my abhorrent behaviour towards [the victim]. My actions involving physical assaults and threats were unforgivable and would have impacted [the victim] and her family greatly. I take full responsibility for these actions and upon painful reflection accept I should have handled the specific incidents in a much more appropriate and timely manner and without recourse to physical violence.
…
I have been deeply ashamed of my actions for a long time and still feel the shame profoundly after disclosing it to family and friends. The hurt caused to my own family has been immeasurable and as my own children move into adulthood, I finally and belatedly understand the example that must be set for them and others in the community.
Again, I am deeply sorry for the pain I have caused to [the victim] and her family, particularly [her children].
It is apparent from the letter that the appellant accepted the substance of the evidence of the victim and her children in relation to the counts in the 2023 indictment was truthful and reliable in all material respects. If the appellant had not entered pleas of guilty it would not have been open to defence counsel to cross‑examine the victim or her children in a manner that was inconsistent with the appellant's instructions. In the circumstances, counsel for the appellant's contention on appeal that the State's case against the appellant was 'not strong' must be rejected.
Plainly, there were utilitarian benefits to the State, and to the victim, her children and other witnesses, from the appellant's pleas of guilty. However, the nature and extent of those benefits had to be assessed having regard to the timing of the pleas. The appellant was charged on 12 July 2021. He pleaded not guilty. On 11 January 2023, the case was listed for a 5‑day trial commencing on 4 September 2023. The appellant did not indicate any pleas of guilty to any of the counts until 4 September 2023, being the first scheduled day of his trial. He entered the pleas on 5 September 2023.
As we have mentioned:
(a)Count 1 was in both the 2022 indictment and the 2023 indictment, but there were significant changes to the facts of count 1 in that the number of particularised incidents relied upon by the State was reduced from 19 incidents to six incidents.
(b)The charges in counts 2 and 4 were in both the 2022 indictment and the 2023 indictment and the facts relied upon by the State in support of those counts were unchanged.
(c)The charges in counts 3 and 7 were in both the 2022 indictment and the 2023 indictment, but there was some amendment to the facts relied upon by the State in support of those counts.
When the appellant first indicated that he would plead guilty to the counts in the 2023 indictment, the witnesses had been summonsed and some of them had already travelled to Geraldton to give evidence. The victim suffered anxiety and uncertainty in preparing to give evidence against the appellant, who was her former partner, in relation to serious domestic violence offences.
The primary judge gave rational and coherent reasons for the discounts he allowed for the pleas of guilty in relation to counts 1, 2, 3, 4 and 7. We are not persuaded that any of the discounts that his Honour allowed was unreasonable or plainly unjust.
Ground 2 does not have a reasonable prospect of success. Leave to appeal in respect of the ground should be refused.
Ground 3
As we have mentioned, we agree with Hall JA, for the reasons he gives, that ground 3 does not have a reasonable prospect of success and that leave to appeal in respect of that ground should be refused.
Conclusion
The appeal must be dismissed.
HALL JA:
Over a period of approximately five and a half years, the appellant committed a series of serious violent offences against his domestic partner. The offences mostly occurred at the appellant's farm, where they were living. The offending included acts of punching, pushing, shaking, and grabbing the complainant by her throat. On one occasion, the appellant placed his hands on the complainant's throat and squeezed so hard that she could not breathe and lost consciousness. On other occasions, threats of violence were made, including with weapons. Some of the offences occurred in the presence of the complainant's children. The offending was often accompanied by verbal abuse.
The appellant pleaded guilty to seven counts of violence‑related offences on the day that his trial was due to commence. He was sentenced to a total effective sentence of 7 years' imprisonment.
In determining the sentences for the individual offences, the learned sentencing judge allowed discounts for pleading guilty pursuant to s 9AA of the Sentencing Act 1995 (WA) of between 5% and 25%. This was because, whilst the pleas were all entered on the same date, some of the counts had been substituted for other charges at a relatively late stage, and the facts in respect of other counts had been amended. The differences in the discounts reflected the sentencing judge's assessment of whether the pleas had been entered at the first reasonable opportunity. A discount of 15% was allowed for count 1; 5% for counts 2 and 4; 10% for counts 3 and 7; and 25% for counts 5 and 6.
The appellant seeks leave to appeal against his sentence on the grounds that the sentencing judge erred in concluding that the pleas to counts 1, 2, 3, 4 and 7 were not entered at the first reasonable opportunity; that the discounts afforded by the sentencing judge on counts 1, 2, 3, 4 and 7 were manifestly inadequate; and that the aggregate sentence breached the totality principle in that it did not bear a proper relationship to the overall criminality of the appellant's conduct.
The appellant applied to adduce additional evidence on the appeal. That evidence is an affidavit from his solicitor that sets out the negotiations with the prosecution that occurred prior to the pleas being entered. The affidavit is relied on in support of grounds 1 and 2. The affidavit does not materially add to the information that was before the sentencing judge. I would refuse the application to adduce the additional evidence.
The appellant also seeks an extension of time. The appeal notice was filed approximately one month after the last date for appealing. In an affidavit, the appellant's solicitor provides reasons for the delay. Essentially, the solicitor was on leave and then required funds in trust before he would engage a barrister. Whilst this does not entirely explain the delay, the delay itself is relatively short and I would grant an extension of time.
However, for the reasons that follow, none of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
The offences
The charges to which the appellant pleaded guilty are as follows:[20]
1.Between 25 March 2015 and 2 November 2020 at East Binnu and elsewhere the appellant persistently engaged in family violence against the complainant, contrary to s 300(1) of the Criminal Code (WA) (the Code);
2.On a date unknown between 22 December 2016 and 30 December 2016 at East Binnu the appellant unlawfully assaulted the complainant and thereby did her bodily harm, and that the appellant was in a family relationship with the complainant, contrary to s 317(1) of the Code;
3.On 5 August 2017 at East Binnu the appellant unlawfully assaulted the complainant and thereby did her bodily harm, and that the appellant was in a family relationship with the complainant, contrary to s 317(1) of the Code;
4.On a date unknown between 31 March 2018 and 1 October 2018 at East Binnu the appellant unlawfully did an act as a result of which the life, health or safety of the complainant was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code;
5.On a date unknown between 31 May 2019 and 1 July 2019 at East Binnu the appellant unlawfully did an act as a result of which the life, health or safety of the complainant was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code;
6.On a date unknown between 31 August 2020 and 1 October 2020 at East Binnu the appellant was armed with a dangerous weapon, namely a firearm, in circumstances likely to cause fear to the complainant, contrary to s 68 of the Code; and
7.On the same date and at the same place as in count 6, the appellant unlawfully did an act as a result of which the life, health or safety of the complainant was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code.
[20] ts 31 - 36.
Facts of the offending
The uncontested facts are as follows.
The relationship between the appellant and the complainant commenced in 2014. The complainant had two young children from a previous relationship. The appellant owned a farm in East Binnu. The complainant moved with her children to live at the farm, though they also all lived from time to time at a house in Geraldton.[21]
[21] ts 85.
The appellant is 174 cm tall and of medium build. The complainant is 159 cm tall and also of medium build.[22]
[22] ts 31.
In relation to count 1, the appellant committed six incidents of family violence against the complainant between 26 March 2015 and 1 November 2020. On 26 March 2015, the complainant and the appellant were at the East Binnu property. The complainant was sitting on a couch when the appellant said to her, '[y]ou are nothing but a fucking cunt', before reaching over and punching her to the upper right arm and chest. The complainant sustained bruising to her upper arm, which was observed by friends two days later. The complainant told her friends what had occurred, and photographs were taken.[23]
[23] ts 31 - 32.
On 4 January 2017, the complainant and the appellant were at the East Binnu property, lying in bed and talking. The appellant became angry with the complainant and grabbed her by the throat, saying, '[s]hut the fuck up, you stupid cunt'. He walked out of the house, followed by the complainant. He grabbed her by the shirt and shook her back and forth with such force that he ripped her shirt off, leaving her naked from the waist up.[24]
[24] ts 32.
Later that day, after the complainant had gone to collect the mail and returned to the property, the appellant questioned her about why she had gone into town. He stood up and pushed the complainant as hard as he could with both hands to her chest, causing her to fall to the ground, colliding with a wooden coffee table as she fell. The appellant then ran towards the complainant, grabbed her throat and shook her, yelling, '[d]on't fucking interrupt me again, you cunt'. He then went into the study and threw the complainant's property around. He came back with the leg of a piece of furniture and said, '[k]eep going, cunt. I will fucking smash you and more of your shit up'. He raised the furniture leg up and said 'I have all day to do this'.[25]
[25] ts 32.
On 14 February 2018, the complainant and the appellant were staying at the complainant's mother's house in Wandina. The complainant was lying in bed when the appellant became angry. He jumped on top of her and started punching her, repeatedly and forcefully, to the chest with his right fist. She had difficulty breathing and was gasping and telling the appellant to stop. The following day, the complainant had difficulty moving and breathing, and coughing was very painful.[26]
[26] ts 32 - 33.
On 3 February 2019, the complainant and the appellant were at the East Binnu property. The complainant was lying on their bed when the appellant used his foot to kick her off the bed. He grabbed her by the foot and dragged her out of the bedroom. The complainant hit her head on a linen cupboard door, which was just outside the bedroom. He continued to drag the complainant around, causing bruising to her face, wrist and scalp, and a chunk of her hair was ripped from her scalp.[27]
[27] ts 33.
On 22 February 2019, the complainant and the appellant were in Mount Tarcoola. During a verbal argument between them about sending the complainant's daughter to boarding school, the appellant picked up a hard plastic spatula. He hit the complainant repeatedly very hard with the spatula to the legs, causing multiple bruises. The complainant began screaming and crying for the appellant to stop. She could hear her daughters crying in the next bedroom.[28]
[28] ts 33.
On 1 November 2020, the complainant attended at the East Binnu property, at the appellant's request, to discuss their relationship. She had her 11‑year‑old daughter with her. The complainant's daughter spilled a drink, and the appellant became angry and aggressive, shouting at the complainant and threatening her. He raised his hand, made a fist, and went to punch the complainant.[29]
[29] ts 33.
The facts in relation to count 2, an offence of aggravated assault occasioning bodily harm, are as follows. On an unknown date between 22 December 2016 and 30 December 2016, the complainant and the appellant were at the East Binnu property. The appellant was doing something outside the house with a power drill. The complainant was talking when the appellant stood in front of her and pointed the drill at her face and said, '[y]ou want to shut your fucking mouth, you mouthy cunt'. She replied, '[f]uck you. I'm not shutting up'. The appellant then put the drill against the complainant's upper body and turned it on. The drill spindle made contact with the complainant's back and the appellant held it there for a few seconds, causing a red burn mark. The complainant pushed the appellant away. The appellant threatened her by saying, '[y]ou keep going, you smart cunt, and you will get another one'. The burn was painful for over a week.[30]
[30] ts 33 - 34.
The facts in relation to count 3, a further offence of aggravated assault occasioning bodily harm, are as follows. On 5 August 2017, the complainant and the appellant were at the East Binnu property. They were lying in bed and had an argument. The appellant rolled over and elbowed the complainant to the face. She began screaming and begging him to stop. She went to the bathroom and saw swelling to her eye, which progressed to a swollen, bruised eye by the next morning. The appellant said to the complainant, '[y]ou're not going to golf like that', but as she was cooking at the golf club that day, she did attend. At the golf club, the complainant was questioned by several friends and family members about how she had sustained the black eye.[31]
[31] ts 34.
The facts in relation to count 4, an offence of doing an act likely to endanger life, health or safety, are as follows. Around the middle of 2018, the appellant and the complainant were at the East Binnu property. The appellant became enraged and was yelling and screaming at the complainant. He was throwing items around the house. Whilst in the dining room, he pushed the complainant to the chest, causing her to stumble backwards and fall to the ground. He then jumped onto her and straddled her chest. He put both hands around her neck and squeezed her throat, causing her to choke. She struggled to breathe and lost consciousness. She thought she was going to die. The complainant's 13‑year‑old daughter shouted at the appellant to stop and pulled him off the complainant.[32]
[32] ts 35.
The facts in relation to count 5, a further offence of doing an act likely to endanger life, health or safety, are as follows. On 10 May 2019, the complainant struck an emu whilst driving in her vehicle. As a result, the appellant told her, '[i]f you cause any other damage to the car, you're going to cop a flogging'. In June 2019, the complainant was returning home to the East Binnu property from work and struck a kangaroo. When she told the appellant what had happened, he replied, '[y]ou've got to be joking. I warned you. You want to run, cunt'. He then stormed off to the garage, yelling and screaming. The complainant ran out the front door and hid in a paddock in fear of the appellant, who returned to the house and began smashing items inside. He then went to the front garden, where he threw a table and chairs into the fence. The complainant returned to the house and the appellant told her to clean up the mess that he had made. Whilst the complainant was cleaning up the mess, the appellant threw a glass tumbler at the complainant's face, from a distance of 1.5 m. On impact, the glass tumbler caused numerous cuts to the complainant's face. She suffered swelling and severe pain, which continued for some time afterwards when she was trying to eat.[33]
[33] ts 35 - 36.
The facts in relation to count 6, an offence of being armed with a dangerous weapon in circumstances likely to cause fear, are as follows. On a date between 1 September 2020 and 30 September 2020, the complainant attended at the East Binnu property with her 11‑year‑old daughter to collect some personal belongings. The complainant was sitting on the bed in the main bedroom when the appellant entered the room. An argument developed between them. During the argument, the appellant stood up and closed the bedroom door. The complainant remained sitting on the bed facing away from the appellant, who was standing near the closed door. The appellant picked up a shotgun and cocked it. The gun was unloaded. The complainant, hearing the cocking of the gun, stood up, turned around and saw the gun. The appellant then dry‑fired the gun while pointing it away from the complainant. The appellant did not, at any relevant time, possess a firearms licence.[34]
[34] ts 36.
The facts in relation to count 7, a further offence of doing an act likely to endanger life, health or safety, are as follows. This offence occurred on the same day as count 6. After the incident in the bedroom, the complainant left the room and walked to the kitchen. The appellant followed her and pushed her to the floor. She landed face down and said '[b]e careful. I'm on blood thinners'. The appellant sat on the complainant's back, straddling her. He then grabbed her hair at the back of her head and used it to slam her head onto the ground. She managed to escape from under the appellant and ran to her car. She then drove away with her daughter.[35]
[35] ts 36.
The appellant was arrested in Geraldton on 12 July 2021. Later that day, he participated in a police interview. During the interview, he made only limited admissions. He did admit to punching the complainant in the arm, and to once apologising for 'manhandling her'. He admitted having a problem with anger but attempted to shift blame to the complainant, saying that she was persistently stubborn. The appellant answered, '[n]o comment' to many of the specific allegations put to him.[36]
[36] ts 37.
Victim impact statement
The complainant provided a victim impact statement. In that statement, she states that prior to meeting the appellant, she lived a quiet, normal life. She played sport, had a large circle of friends and a good social life.[37]
[37] Victim impact statement, dated 7 September 2023, 1.
When the domestic violence started, the complainant said she was shocked and had no idea what to do or where to go. At the start, the appellant promised her that he would never do it again. She refers to the promise leading to 'six years of hell'. She felt compelled to hide the domestic violence, including by lying to her own family when they noticed bruising.[38]
[38] Victim impact statement, dated 7 September 2023, 1.
The complainant states that she lived in isolation and in fear, not only for herself but for her two young daughters. She states that, during the relationship, she had never felt so alone and felt that there was no way out and that she was trapped. She described living in a world of chaos where she was too scared to say the wrong thing, move a piece of furniture, or even talk, as she would be made to suffer the consequences in many ways; physically, verbally and mentally. She called the domestic violence helpline but hung up because she was scared about how the appellant would react if he found out. She concludes by saying that she went through hell, at times thinking she was going to die.[39]
[39] Victim impact statement, dated 7 September 2023, 2 - 3.
The appellant's personal circumstances
The appellant was 47 years old at the time of sentencing. He was born in Western Australia on 2 December 1975 and grew up on the family farm in East Binnu. He left the farm as a child to go to boarding school. He completed a degree in accounting at university and worked for a period as a graduate, before returning to the farm. He worked on the farm until shortly before his sentencing, when the farm was sold, and he moved to Perth.[40]
[40] ts 44, 92.
The appellant has had two significant intimate relationships in his life. The first lasted nine years and ended in 2009. He has two children from that relationship, aged 17 and 19 years old at the time of sentencing. The children remained with his former partner after they separated, though they would spend weekends and school holidays with the appellant. More recently, the appellant has renewed contact with his children, particularly his son. The second significant relationship was with the complainant, which commenced in 2014 and ended in 2020.[41]
[41] ts 92.
On 14 November 2011, the appellant committed an offence of dangerous driving occasioning death, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA). He was also convicted at the same time of dangerous driving occasioning grievous bodily harm, and driving with excess alcohol in his blood. He received a total effective sentence of 3 years' immediate imprisonment for the dangerous driving offences, and was fined for the driving under the influence of alcohol offence. He has two other offences on his record, an offence of dangerous driving committed in 2000 and another offence of driving under the influence of alcohol committed in 1994, for both of which he received small fines.[42]
[42] ts 92; History for Court - Criminal and Traffic, 6 September 2023.
The appellant provided a letter to the sentencing judge in which he expressed his 'deepest regret and apologies' for his 'abhorrent behaviour'. He accepted that his actions were unforgiveable and would have impacted on the complainant and her family. He said that he took full responsibility for his actions and that he should have handled the incidents in a 'much more appropriate and timely manner, without recourse to physical violence'. He referred to having addressed his anger issues through extended counselling, to which he had self‑referred in January 2021. As a result of this counselling, he said that he had learned and implemented methods for controlling the worst of his emotions. He had committed to continue working on these, and other, strategies with his counsellor during his imprisonment. He stated that he was deeply ashamed of his actions, and that the hurt caused to his own family had been immeasurable.[43]
[43] Letter to sentencing judge, dated 5 September 2023.
There were personal references provided to the sentencing judge, including references from the appellant's son, father, a number of his friends, and an employee. They attested to the appellant's good qualities and work ethic.
There was also a letter from Desert Blue Connect, the counselling service that the appellant self‑referred to. This letter confirmed that the appellant had been engaged with the Men's Community Intervention Service since 28 January 2021. Thereafter, he had attended fortnightly appointments, with rare non‑attendance, until 30 August 2023 (when the letter was written). The writer of the letter stated that the appellant had expressed remorse for, and awareness of, the psychological damage caused to the complainant's children when they witnessed the abuse of their mother. The letter states that the appellant engaged fully in the program and had taken ownership of his abusive behaviour.[44]
[44] Letter by G Ullrich, Desert Blue Connect, dated 30 August 2023.
The procedural history
The appellant was first arrested and charged with offences against the complainant on 12 July 2021. He appeared on 12 occasions in the Magistrates Court before being committed for trial on 21 April 2022. His first trial listing hearing in the District Court was on 27 July 2022.
The District Court indictment dated 14 November 2022 (the 2022 indictment) contained 11 counts, nine of which alleged offences of domestic violence against the complainant. The remaining two counts alleged offences contrary to s 304(1)(b) of the Code against the complainant's 16‑year‑old son (counts 2 and 3).
Grounds of appeal
The grounds of appeal are in the following terms:[64]
[64] WAB 9 - 11.
1.The sentencing judge sentencing judge [sic] erred in concluding that the appellant's pleas to Counts 1, 2, 3, 4 and 7 were not [entered] at the first reasonable opportunity, by failing to take into account the existence of relevant forensic prejudice to the appellant had he pleaded guilty or indicated a plea of guilty any earlier.
Particulars
a.The sentencing judge's objective assessment of whether or not the appellant's pleas were entered at the first reasonable opportunity was limited to the following matters:
i.The timing of the pleas in terms of when the charges were commenced and when the pleas were entered;
ii.That pleas were entered after negotiations with the Respondent to discontinue some prescribed acts under count 1 and other counts on the old Indictment resulting in a new Indictment; and
iii.That although there were some changes to the material facts behind the counts, all the counts save for 5 and 6 were on the old Indictment.
b.His Honour failed to consider the forensic prejudice articulated by Ipp J in Atholwood v R (1999) 109 A Crim R 465 which holds albeit a narrow relevance under the new statutory regime of section 9AA of the Sentencing Act 1995 (WA).
c.All of the counts on the indictment were offences of violence by way of assaults of one form or another against the same victim.
d.An obvious and relevant forensic prejudice to the appellant would have been an inevitable reliance by the Respondent on any such prior convictions, the facts behind them and admission of conduct by the appellant against him in any trial he stood contesting the balance of the counts.
e.The sentencing judge did not consider this at all when assessing whether or not the appellant pleaded guilty at the first reasonable opportunity resulting [in] an erroneous finding of fact, materially affecting the sentence imposed.
2.The discount afforded by the sentencing judge under section 9AA(2) of the Sentencing Act 1995 (WA) to each of counts 1, 2, 3, 4 and 7 was manifestly inadequate.
Particulars
a.The appellant was sentenced following pleas of guilty for several offences of intimate violence over a period of approximately five years and as against the same victim.
b.Each of the discounts afforded to Counts 1, 2, 3, 4 and 7 were plainly unjust having regard:
i.To the benefits [to]:
1.The State of having to conduct a trial; and
2.The victim and her children.
3.The sentencing judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct having regard to all relevant circumstances including those referable to the appellant personally.
Particulars
a.The overall criminality of the appellant's conduct was extremely serious and as abhorrent as it was, still needed to be placed in the broader context of intimate violence.
b.The appellant's pleas of guilty remained an important consideration. They were a real benefit to the victim and her children in avoiding the risk of further trauma and psychological harm.
c.Although the appellant's attitude and behaviour were deeply entrenched, his acceptance of responsibility for his offending demonstrated his ongoing and ultimate commitment to addressing those entrenched behaviours.
d.The Appellant did not have a history of domestic violence with his previous partner.
e.The Appellant had good prospects of rehabilitation.
It is convenient to deal with grounds 1 and 2 together.
Grounds 1 and 2 - the s 9AA discounts - appellant's submissions
The appellant submits that the sentencing judge erred in concluding that the appellant's pleas to counts 1, 2, 3, 4 and 7 were not entered at the first reasonable opportunity 'by failing to take into account the existence of relevant forensic prejudice to the appellant had he pleaded any earlier'. The appellant identifies the forensic prejudice as being that if he had pleaded guilty to those counts at an earlier stage, the State would have applied to categorise the conduct as being of a propensity character, admissible in the trial of any remaining counts not pleaded guilty to. It is said that the strength of the prosecution case on those other counts would have then increased by virtue of those convictions.[65]
[65] WAB 23 - 25.
The appellant submits that an accused should not reasonably be expected to enter pleas of guilty to offences of a similar nature at the first opportunity and take the balance of the charges to trial, knowing full well that any such pleas would result in an inevitable strengthening of the prosecution case. The appellant submits that the sentencing judge took the view that because counts 1, 2, 3, 4 and 7 were, in effect, included on both the 2022 and the 2023 indictments, it was open to the appellant to have pleaded guilty to those counts at an earlier stage.[66]
[66] WAB 26.
The complaint in ground 2 is that the discount afforded under s 9AA for each of counts 1, 2, 3, 4 and 7 was manifestly inadequate. In this regard, the appellant emphasises the benefits to the complainant and her children in not having to give evidence as witnesses, and the benefits to the State in avoiding a trial. It is said that those benefits were considerable in the circumstances of this case, and should have resulted in discounts that were greater than those allowed.[67]
[67] WAB 26.
Grounds 1 and 2 - the s 9AA discounts - respondent's submissions
The respondent notes that it was not contended on the appellant's behalf at sentencing that his pleas of guilty to counts 1, 2, 3, 4 and 7 were entered at the first reasonable opportunity. Defence counsel asserted that the guilty pleas to counts 5 and 6 were entered at the first reasonable opportunity, which was accepted by the sentencing judge and appropriately resulted in the maximum discount of 25%. Implicit in the submission made by defence counsel was an acceptance that the guilty pleas in respect of counts 1, 2, 3, 4 and 7 were not entered at the first reasonable opportunity.[68]
[68] WAB 42.
The respondent submits that it was open to the appellant to conditionally indicate a willingness to plead guilty in relation to counts 1, 2, 3, 4 and 7, subject to negotiating the withdrawal of some charges in the earlier indictment and the resolution of factual issues. In identifying the first reasonable opportunity, the strategic advantage to the appellant in delaying his plea while he pursued negotiations to other counts and on the facts, does not render the delay reasonable.[69]
[69] See Curry v The State of Western Australia [2022] WASCA 36 [47]; Savory v The State of Western Australia [2018] WASCA 165 [50]; Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [132].
The respondent submits that, ultimately, as the sentencing judge noted, the matter only resolved via plea negotiations on or about 4 ‑ 5 September 2023. The trial was scheduled to commence in the week beginning 4 September 2023. There was no indication of a willingness to plead guilty to any of the charges in the two years between July 2021 and July 2023. During this period, the appellant appeared 12 times in the Magistrates Court and three times in the District Court.[70]
[70] WAB 43.
The respondent submits that, whilst it may have been strategically advantageous to the appellant to delay guilty pleas, and so avoid the use of those matters as propensity evidence in any trial of other charges to which he maintained his pleas of not guilty, this does not render the delay reasonable.[71]
[71] WAB 43.
As to ground 2, the respondent submits that the utilitarian benefits to the State, the complainant and other witnesses is to be assessed, in part, by reference to the timing of the plea. The earlier the plea, the greater the utilitarian benefits to all parties. In this instance, the appellant was charged on 12 July 2021 and maintained pleas of not guilty to all charges until the matter was resolved shortly before the trial was due to commence. The witnesses had been summoned and, in some instances, had travelled to be present in Geraldton for the trial. The complainant was subject to the understandable anxiety and uncertainty of preparing to give evidence against her former partner in relation to serious domestic violence offences. The respondent submits that, in those circumstances, the discounts for counts 1, 2, 3, 4 and 7 are not unreasonable or plainly unjust.[72]
[72] WAB 44.
Grounds 1 and 2 - the s 9AA discounts – the merits
Section 9AA of the Sentencing Act provides:
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA(2) confines the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or any witness to the offence, resulting from the plea'. Subjective factors relating to the offender are not relevant in determining any discount to be given under s 9AA. However, section 9AA(6) provides that the section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The maximum discount for a plea of guilty under s 9AA is 25%.[73] However, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.[74] The making, or the indication, of a plea at the first reasonable opportunity enlivens the power to grant the maximum discount. If the power is enlivened, the sentencing judge is not bound to give a 25% discount.
[73] Sentencing Act s 9AA(4)(a).
[74] Sentencing Act s 9AA(4)(b).
The phrase 'the first reasonable opportunity' in s 9AA is not defined in the Sentencing Act. In Rossi v The State of Western Australia,[75] this court considered the proper construction and effect of the phrase. McLure P (with whose reasons Mazza JA and I agreed) noted that the opportunities to plead guilty to a charge for an offence are governed by the Criminal Procedure Act 2004 (WA). Her Honour concluded that the first opportunity for an accused to plead guilty to a charge for an indictable offence is after the initial disclosure obligations under the Criminal Procedure Act have been complied with.[76] A plea entered at this stage is known as a 'fast‑track plea'. Her Honour then said:[77]
However, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion.
[75] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508.
[76] Rossi [52].
[77] Rossi [53].
In Rossi, the appellant contended that he could not be expected to plead guilty until he had received notice of relevant evidence and had time to consider that evidence. McLure P did not accept that before an accused person enters a plea to an offence they are entitled to know and understand the evidence and to have had time to consider and seek legal advice about it. Her Honour said that the criterion of 'first reasonable opportunity' is objective, and that an accused person cannot sit back and fail to take the necessary steps to put himself in a position to plead. Her Honour went on to say that a contention that an accused person may not know that they are guilty of an offence charged because they do not know the facts that make up every element of the offence, could not be accepted at face value. She said that such a statement was too broad because it depended on what was meant by knowledge and the reason for the claimed lack of knowledge.[78]
[78] Rossi [69] - [70].
In the present case, it is not suggested that the appellant lacked knowledge of the relevant facts and circumstances relating to the charges against him. The fact that the appellant gave detailed instructions regarding the alleged facts indicates that he was never under any disadvantage regarding his knowledge of the relevant events. It was, however, relevant that some of the counts were new and the facts in relation to others were changed.
There can be no complaint regarding the discount given for the charges that appeared for the first time in the 2023 indictment, being counts 5 and 6. The sentencing judge accepted that the appellant entered pleas of guilty to those charges at the first reasonable opportunity and allowed the maximum discount of 25%.[79]
[79] ts 85.
As to the other counts, it was necessary for the sentencing judge to make an objective assessment as to whether it would have been reasonable for the appellant to have pleaded guilty on an earlier occasion. In making this assessment, the fact that the precise form of the charge was changed or that the facts were amended was a relevant, but not determinative, consideration. Such changes do not necessarily mean that pleas of guilty could not have been entered at an earlier stage. It is open to an accused person to offer to plead guilty to an alternative charge in respect of alleged conduct or to plead guilty and dispute the alleged facts.
Counts 1, 2, 3, 4 and 7 had been pending, in some form, from the time the appellant was first charged in 2021. Counts 2 and 4 and the facts relating to them were not the subject of any alteration. Counts 1, 3 and 7 were the subject of changes to the alleged facts, but the allegations that the appellant ultimately accepted were always part of the prosecution case against him. In these circumstances, whilst some allowances for the changed prosecution case were appropriate, it could not be properly maintained that the pleas to these counts were made at the first reasonable opportunity. The appellant could have entered, or indicated, pleas to these counts at an earlier stage of the proceedings. The first indication of possible pleas was in July 2023, nearly two years after the appellant was charged.
The appellant contends that, notwithstanding that he may have had an earlier opportunity to plead guilty to counts 1, 2, 3, 4 and 7, it was not reasonable for him to do so because he would have suffered a forensic disadvantage had he pleaded at an earlier stage. The forensic disdavatage identified is that had pleas been entered at an earlier stage, the appellant would have run the risk that those convictions could be used as propensity evidence against him at any trial of remaining matters. It is contended that an accused person in such circumstances should not be expected to enter pleas if in doing so he strengthens the prosecution case in other respects.
There are a number of speculative components to this argument. First, it assumes that there will be other charges that will proceed to trial. Secondly, it assumes that, at any trial, the facts of the convictions will be admissible under s 31A of the Evidence Act 1906 (WA) as propensity evidence. Thirdly, it overlooks the possibility that if all counts went to trial the evidence relating to each of them may be cross‑admissible as propensity evidence in any event. More fundamentally, the argument suffers from the flawed assumption that any forensic disadvantage will justify a delay in pleading guilty, or make it unreasonable to enter pleas at an earlier stage.
The appellant seeks to derive some support for this submission from a passage in Atholwood v The Queen.[80] In that case, Ipp J said that where an offender pleads guilty to some charges after negotiations 'regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts with which he is charged to persist in a not guilty plea to all counts'.[81] This passage was referred to with approval by the High Court in Cameron v The Queen.[82]
[80] Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465.
[81] Atholwood [10].
[82] Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [20] ‑ [23].
The assistance to be derived from Atholwood is limited. Both that case and Cameron were decided prior to the introduction of s 9AA. Furthermore, as McLure P noted in Rossi, to the extent that it remains relevant, Ipp J's judgment in Atholwood has been narrowly applied in subsequent decisions of this court: Gallop v The State of Western Australia;[83] Luff v The State of Western Australia;[84] and Hishmeh v The State of Western Australia.[85] In any event, the proper approach is to consider the meaning of the phrase 'earliest reasonble opportunity' in its statutory context.
[83] Gallop v The State of Western Australia [2007] WASCA 243.
[84] Luff v The State of Western Australia [2008] WASCA 89.
[85] Hishmeh v The State of Western Australia [2012] WASCA 183.
The fact that it may be beneficial to an accused person to delay pleading guilty does not mean that it is unreasonable to enter a plea at an earlier stage. Any decision to plead guilty is likely to involve a weighing up of the relative advantages and disadvantages of doing so. It may be that a disadvantage of pleading early to some charges is that the accused person has diminished bargaining power in relation to other charges. An accused person in these circumstances has a strong self‑interest in attempting to extract the maximum benefit for himself. However, that interest does not amount to a reasonable basis for deferring pleas of guilty when determining the appropriate discount under s 9AA.
The purpose of s 9AA is to encourage early pleas of guilty, not to reward late pleas because it may be in the interests of the accused to delay their pleas. If an accused person wishes to delay their pleas they can do so, but they cannot reasonably expect that late pleas will still be rewarded with the maximum discount. It would incentivise delay if an accused person was eligible to receive the maximum discount where they had deferred pleading guilty in order to improve or preserve their position in plea negotiations. That would be contrary to public policy and to the policy underpinning s 9AA. Furthermore, it would, in effect, allow an accused person to benefit twice, first by negotiating a favourable outcome in plea negotiations and, secondly, by obtaining the maximum possible discount for pleading guilty.
The forensic disadvantage identified by the appellant, namely the risk that the prosecution could rely on convictions as propensity evidence, was not such as to make it not objectively reasonably open for the appellant to have pleaded guilty at an earlier stage. The sentencing judge did not err in concluding that the appellant's pleas to counts 1, 2, 3, 4 and 7 were not entered, or indicated, at the first reasonable opportunity.
In respect of ground 2, as the use of the phrase 'manifestly inadequate' recognises, the determination of the precise discount is a discretionary judgment. There is no single correct discount in any particular case. The sentencing judge must make an objective assessment, based on a consideration of all of the circumstances, of whether it was open to the appellant to have entered pleas at an earlier stage. To succeed, the appellant must establish that the discounts allowed were so unreasonble or plainly unjust that error can be inferred. Even if that is established, the appellant must then show that a different sentence should have been imposed.[86]
[86] Criminal Appeals Act2004 (WA) s 31(4).
The first approach by the appellant to resolve the matter was made on 25 July 2023. That was approximately two years after the appellant was first charged and a little over one month before the trial was listed to commence. The negotiations were not pursued again until the day before the trial was due to commence. On any objective assessment, these were late pleas. The additonal evidence adds nothing material to what was before the sentencing judge.
At the hearing of the appeal, counsel for the appellant argued that the discounts failed to adequately reflect the real value of the pleas in avoiding a trial and further trauma to the complainant and other witnesses.[87] It may be accepted that even a very late plea will have utilitarian value. The likely length of the trial and the potential trauma to witnesses are relevant in assessing the value of the plea. However, s 9AA(3) provides that 'the earlier in the proceedings the plea is made, the greater the reduction in the sentence may be'. Inevitably, a discount will reduce the later the plea is made. In this case the trial was ready to proceed, and witnesses had been summonsed. The complainant had been prepared for trial and had to endure two years of uncertainty before the matter concluded.
[87] Appeal ts 22.
The sentencing judge recognised that it was necessary to consider the cirumstances relating to each count. The discounts were calculated by his Honour having regard to the changes to the charges and the alleged facts. The discounts were carefully calibrated to reflect the nature of the charge, how long that charge had been extant, and whether there had been any significant change to the alleged facts. The appellant has fallen well short of showing that the discounts were unreasonble or plainly unjust.
In my view, grounds 1 and 2 have no reasonble prospect of success. I would dismiss the application to adduce additional evidence, and refuse leave to appeal in respect of these grounds.
Ground 3 – totality - appellant's submissions
The appellant submits that, whilst his overall criminality was extremely serious and abhorrent and was deserving of a lengthy term of immediate imprisonment, in his favour he did not have a history of domestic violence with his previous partner, and had good prospects of rehabilitation. The appellant also submits that his pleas of guilty were ultimately of real benefit to the complainant and her children in avoiding the further trauma and psychological harm of a trial.[88]
[88] WAB 30 - 31.
The appellant submits that although the appellant's attitude and behaviour were found to be deeply entrenched, his acceptance of responsibility for his offending demonstrated an ongoing commitment to addressing those behaviours. His counselling had brought him to a point of greater acceptance of his criminal responsibility. The spirit of his plea, and the importance of that step in bringing the matter to a conclusion, was 'dampened' by the judge's remarks and might be viewed by other offenders as discouraging.[89]
[89] WAB 31.
Ground 3 – totality - respondent's submissions
The respondent says that the appellant's lack of history of domestic violence is irrelevant in the sentencing exercise. The absence of an aggravating factor does not constitute the presence of a mitigating factor. This is particularly so in the present case, when, by his own admission, the appellant perpetrated serious instances of domestic violence against the complainant over a period of five years.[90]
[90] WAB 45.
The respondent submits that in cases involving offences of domestic violence, general and personal deterrence and denunciation of the conduct are emphasised. In Gomboc v The State of Western Australia,[91] this court noted that both Parliament and the courts recognise the particular dangers associated with offences involving non‑fatal strangulation and the role they play in cases of domestic violence.[92]
[91] Gomboc v The State of Western Australia [2023] WASCA 115 [192].
[92] WAB 45 - 48.
The respondent submits that the overall offending included offences of persistent family violence, as well as two counts of aggravated assault occasioning bodily harm, three counts of acting in a way which caused bodily harm or danger, and one count of being armed in such a way as to cause fear. The overall conduct included the use of weapons such as kitchen utensils, broken furniture pieces, a power tool, and a shotgun. The offending was aggravated by the fact that the complainant had little, if any, chance to escape the appellant's violent outbursts, during incidents that occurred at a remote farming property. The complainant was subjected to regular physical violence by the appellant; received injuries including cuts, bruising and impaired breathing, over a long period of time; and the psychological harm inflicted by the appellant was significant and ongoing.[93]
[93] WAB 49.
Ground 3 - the merits
The legal principles applicable to a claim that an aggregate sentence breaches the totality principle are well known. Those principles were summarised in Kabambi v The State of Western Australia.[94] It is unnecessary to repeat them.
[94] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
A ground of appeal that alleges that a total effective sentence breaches the totality principle asserts the existence of implied error, that is that the outcome is so plainly unreasonable or unjust that an error can be inferred, even though no error is apparent in the reasons of the sentencing judge. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences. The offences must be viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally (and including for example the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The maximum statutory penalty for count 1 is 14 years' imprisonment.[95] The maximum statutory penalties for each of counts 2 ‑ 7 is 7 years' imprisonment.[96]
[95] Criminal Code s 300(1).
[96] Criminal Code s 317(1)(a), s 304(1)(b), s 68.
General and personal deterrence are important sentencing factors for offences of domestic violence. Offences of this nature generally involve an abuse of trust and a victim who is vulnerable to the offender. Victims often have difficulty extricating themselves from an abusive relationship. It is important when sentencing offenders to take into account the need to protect vulnerable people.[97] Domestic violence is a scourge on society. Awareness of this type of offending and concern to prevent it have grown markedly in recent years. Persistent violence and intimidation in the context of family relationships must be strongly discouraged by appropriate sentences.[98]
[97] Bropho v Hall [2015] WASC 50 [16] (Mitchell J); The State of Western Australia v Chungarai [2021] WASCA 147 [57]; Duncan v The State of Western Australia [2018] WASCA 154 [40]; Gomboc v The State of Western Australia [2023] WASCA 115 [190] ‑ [193]; The State of Western Australia v Riley [2024] WASCA 11 [44].
[98] Riley [67].
The presence of children when offences of domestic violence are committed has been recognised as an aggravating factor. The commission of violent offences in the presence of a child exposes the child to the risk that the cycle of violence may extend to another generation. Children may be distressed and suffer long‑term trauma as a result of being exposed to violence. Violence may become normalised over time.[99]
[99] Chungarai [59].
Domestic violence can include physical injury, psychological injury and emotional trauma. It affects mainly women and children. In the present case, the appellant physically, psychologically and emotionally abused the complainant. The appellant's offending included behaviour that was calculated to terrorise, intimidate, coerce and control the complainant. Denunciation of the appellant's criminal conduct, in addition to personal and general deterrence, was an important sentencing consideration.
Count 4 involved the appellant grabbing the complainant by the neck and exerting pressure until she lost consciousness. In MYB v The State of Western Australia, the following observations were made about the seriousness of offences that involve non‑fatal strangulation:[100]
Strangulation, which is commonly reported by women who have experienced domestic violence, can be distinguished from other forms of family and domestic violence on the basis that it often leaves very few marks or signs; even in cases where the strangulation was life‑threatening. The fact that this type of offending is more likely to go undetected makes strangulation a particularly dangerous form of domestic violence, and recent studies have consistently shown that it is both a predictive risk factor for future severe domestic violence and a relatively common cause of domestic violence‑related homicide.
In Pedrochi [v Brown [2021] WASC 81 [64]], Quinlan CJ referred to the growing appreciation of the particular dangers associated with offences involving strangulation and its role in cases of intimate and family violence. The recognition of the particular dangers posed by non‑fatal strangulation in incidents of domestic violence has resulted in the introduction of the specific offence of strangulation, with which this appellant was charged on count 1 [s 298 of the Code]. However, as there was a second, separate instance of strangulation that comprised part of the series of acts committed with intent to harm, contrary to s 304(2)(a) of the Code, a recognition of the seriousness and danger of non‑fatal strangulation was also a relevant sentencing consideration in respect of count 2, with which ground 1 of this appeal is concerned.
In his Second Reading Speech in respect of the Bill that introduced s 298 of the Code, the Attorney General referred to research which reveals that strangulation, when committed against an intimate partner, is one of the strongest indicators of an increased risk of homicide. The Attorney General went on to describe strangulation as a 'perversely intimate and callous form of violence', which is often used by a perpetrator to convey to his victim that he has the power to take her life away. Observations to this effect have also been made by intermediate appellate courts in a number of other jurisdictions, including Queensland, Tasmania and New Zealand. Those cases also recognise that the need for deterrent punishment arises, not just from the physical and psychological harm which frequently results from an act of strangulation, but also from its inherently dangerous nature and the strong likelihood that, if it is repeated, death or serious injury may eventually result.
[100] MYB v The State of Western Australia [2024] WASCA 53 [64] ‑ [66].
The circumstances of the offending in this case were very serious. The appellant engaged in a series of violent offences against the complainant over a period of five years. The offences involved assaults by punching, pushing, shaking and grabbing by the throat and strangling the complainant. Some of the assaults occurred in the presence of the complainant's young children. The appellant threatened the complainant with weapons. He verbally abused and denigrated her. The complainant was vulnerable, lived in fear and the effects on her were significant. As the sentencing judge noted, the complainant suffered both physical and psychological harm.
As regards the appellant's personal circumstances, he had no prior record of violence and had taken some steps towards his rehabilitation. However, he did not have the benefit of youth and his expressions of remorse were offset by the initial minimisation of his conduct and his late pleas of guilty. The sentencing judge acknowledged the appellant's efforts in counselling but considered that there remained a need for personal deterrence. The character references had to be viewed in light of the obvious fact that the way in which the appellant presented to others was not consistent with his behaviour when alone with the complainant.
The appellant does not contend that any of the individual sentences were manifestly excessive. Further, the appellant does not suggest that there are any truly comparable cases that support the contention that his total effective sentence was disproportionate to his overall offending. However, the absence of directly comparable cases does not preclude the court from deciding that the totality principle has been breached. It merely has the consequence that there are no cases that provide a yardstick against which to assess the total sentence.
There are some cases that relate to sentences for individual offences or to a different mix of domestic violence offences. These cases afford some, though limited, assistance. It is only necessary to refer to two of the more recent cases.
In Gomboc, the offender pleaded guilty to 19 counts, which included two counts of aggravated assault occasioning bodily harm; one count of with intent to harm doing an act endangering life, health or safety; one count of aggravated unlawful wounding; one count of wilful and unlawful damage; one count of being armed in circumstances likely to cause fear; seven counts of making threats to harm; and six counts of making threats to kill. The offending was against the offender's partner and occurred over a period of three and a half years. The victim was vulnerable and was left with severe anxiety and post‑traumatic stress disorder. The offender punched, kicked and strangled the victim. He negligently wounded her with a knife, threw objects at her, threatened to kill her whilst armed and smothered her with a pillow. Discounts for pleading guilty of between 8% ‑ 18% were allowed. The sentencing judge imposed a total effective sentence of 11 years 10 months' imprisonment. An appeal on a totality ground was allowed and the offender was resentenced to 9 years 6 months' imprisonment. Other cases relating to sentencing in domestic violence cases were reviewed at [203] ‑ [214].
In The State of Western Australia v Winch,[101] the offender was convicted on his late plea of guilty of one count of persistently engaging in family violence. The offending occurred over an eight‑year period and involved seven prescribed offences against his partner. The prescribed offences included assaults, a threat to harm, threats to kill, and acts likely to endanger life, health or safety. Some of the threats involved the use of dangerous weapons. The offender had a record of violence. A discount for pleading guilty of 12% was allowed. A sentence of 2 years 3 months' immediate imprisonment was imposed by the sentencing judge. On a State appeal, that sentence was found to be manifestly inadequate and the offender was resentenced to 5 years 8 months' imprisonment.
[101] The State of Western Australia v Winch [2024] WASCA 79.
The total offending in the present case was not significantly less serious than that in Gomboc. It was more serious than that in Winch, particularly having regard to the fact that the appellant committed other offences in addition to one of persistent family violence. Those cases, and the other cases referred to in Gomboc, provide no support for the appellant's argument that the total sentence here was disproportionate to the overall offending.
Having regard to the maximum penalties, the circumstances of the offences, the appellant's personal circumstances and the limited assistance provided by comparable cases, it is not reasonably arguable that the total effective sentence in this case was unreasonable or plainly unjust. The offending behaviour was extremely serious and continued over a five‑year period. The complainant was vulnerable, given that she was physically smaller than the appellant and that most of the offences occurred on an isolated farm. There is no merit in this ground of appeal and leave in respect of it should be refused.
Conclusion
None of the grounds of appeal has any reasonable prospect of succeeding. Leave in respect of each of them should be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
15 JANUARY 2025
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