Criminal law - Leave to appeal against sentence - Discount for plea of guilty - Turns on own facts

Sentencing Act 1995 (WA), s 9AA

Abraham v The State of Western Australia [2014] WASCA 151

Atholwood v The Queen (1999) 109 A Crim R 465

Beins v The State of Western Australia [No 2] [2014] WASCA 54

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Forkin v The State of Western Australia [2013] WASCA 51

Rossi v The State of Western Australia [2014] WASCA 189

1 McLURE P: This is an application for leave to appeal against sentence. The sole ground of appeal is that the sentencing judge erred in denying the appellant a full 25% discount for his plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).

2 On 16 April 2014 the appellant was convicted on his plea of guilty of the manslaughter of his partner's cousin. On 23 April 2014 Commissioner Sleight sentenced the appellant to 7 years 6 months' imprisonment.

3 The facts of the offending are as follows. On 6 December 2012 the deceased, aged 62, became involved in an argument between the appellant and his partner. The deceased became heated and started hitting the appellant with her fists. The appellant walked outside and the deceased followed him. She was carrying an Aboriginal ceremonial stick, a waddy, which was about a metre long.

4 The deceased approached the appellant from behind as he was walking away from the house. The appellant ended up facing the deceased and the deceased struck him in the arm with the waddy, causing a fracture. The deceased then raised the waddy vertically in both hands to about shoulder height and struck the appellant to the head. The appellant reacted by grabbing hold of the waddy with both hands and pulling it towards him. He took possession of the waddy and immediately raised it and struck the deceased to the head twice. The second strike knocked the deceased unconscious and she fell heavily to the ground. The appellant struck the deceased at least twice more to the body as she fell to the ground.

5 The deceased died on 7 December 2012. A post-mortem examination showed that the deceased had suffered a depressed compound fracture of the skull with associated traumatic brain injury and fractures of the fourth to seventh ribs. She also suffered a collapsed lung and had multiple bruising and deep lacerations to her skull.

6 On 7 December 2012 the appellant was charged with murder. On 7 May 2013 the appellant made an offer to the State to plead guilty to manslaughter. The offer was rejected.

7 The offer to plead guilty was made after three appearances by the appellant in the Magistrates Court (8 December 2012, 27 March 2013 and 24 April 2013).

8 The appellant's trial for murder commenced in the Supreme Court on 14 April 2014. On that day the appellant entered a plea of not guilty to murder and a jury was empanelled. At the commencement of the trial the following morning, the prosecutor advised the trial judge that the intended first witness for the State, a 9-year-old child, could not be located. The trial judge accepted that the witness was central to the State case and adjourned the trial.

9 On 16 April 2014 the prosecutor informed the court that after 'having various inquiries and consultations with relevant stakeholders ... the State has determined that in the event the accused man was to plead guilty to a charge of manslaughter, the State would accept that plea ... in full satisfaction of the ... indictment' (ts 41).

10 The appellant was then arraigned on one count of manslaughter to which he pleaded guilty (ts 42).

11 Counsel representing the appellant at sentencing submitted that he should receive the maximum discount of 25% for his plea of guilty, noting a delay of about four months in getting the post-mortem report. He also submitted that the unavailability of the child witness to give evidence at trial should not be overstated, identifying matters said to undermine the credibility of a number of statements in his record of interview (ts 65 - 66).

12 The State accepted that the plea of guilty 'could properly be regarded as an early plea in all the circumstances' and submitted the sentencing judge should give 'such discount as your Honour considers appropriate' (ts 76).

[T]hrough your solicitors you have indicated a willingness to enter a plea of guilty to manslaughter on 7 May 2013. I will allow a discount of 20% for your plea of guilty to take into account the benefits to the State and any victim or witness resulting from the plea.

14 The scope and effect of s 9AA of the Sentencing Act has been considered by this court in a number of cases, including Forkin v The State of Western Australia [2013] WASCA 51, Beins v The State of Western Australia [No 2] [2014] WASCA 54, Abraham v The State of Western Australia [2014] WASCA 151, and Rossi v The State of Western Australia [2014] WASCA 189.

15 In Rossi at [29] - [70] the court considered the meaning of the expression 'first reasonable opportunity' in s 9AA(4)(b) and the relevance of Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 and Atholwood v The Queen (1999) 109 A Crim R 465 to the new statutory framework. It confirmed that the objective utilitarian considerations in s 9AA(2) exhaustively state the matters to be taken into account in determining the extent of any discount for a plea of guilty.

16 For the purpose of this application I will assume, without deciding, that the appellant's plea of guilty was made at the first reasonable opportunity. However, this case should not be taken as authority for the proposition that in circumstances where the State reduces a charge because of the unexplained absence at trial of a central witness, an immediate plea of guilty to the reduced charge is a plea made at the first reasonable opportunity for the purpose of s 9AA(4).

17 In Abraham [62], this court considered and rejected a submission that if an offender pleads guilty at the first reasonable opportunity the sentencing judge must allow a discount of 25% under s 9AA. It continued:

The nature, character and extent of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', within s 9AA(2), may differ as between particular cases where the offender has entered a plea at the first reasonable opportunity. The sentencing judge retains a discretion in deciding upon the discount to be given in each case.

18 The effect of the submission put on behalf of the appellant is that in the circumstances of this case, the sentencing judge was obliged to give the maximum discount. The submission is misconceived. A plea of guilty at the first reasonable opportunity enlivens the power to grant the maximum discount. Once that power is enlivened, the sentencing judge has a discretion that is informed by the considerations in s 9AA(2).

19 The proper course in this case was to take into account all of the circumstances between the date on which the appellant was charged in relation to the unlawful killing of the deceased until the date of his guilty plea. That is what the sentencing judge did. Although his reasons are short, his process of reasoning is clear. The sentencing judge did not give the maximum discount of 25% because of the appellant's delay in informing the State that he was willing to enter a plea of guilty to manslaughter. The post-mortem report was not necessary in order to make that judgment. Where the objective/utilitarian benefits of a willingness to plead guilty are reduced because of the State's reasonable refusal to accept an earlier offer to plead guilty to a lesser offence, it is proper to take into account the offender's delay in offering to plead to the lesser offence.

20 In this case there was no reduction in the discount attributable to the circumstances in which the State accepted the plea, being the unexplained disappearance of the State's central witness. Whether that could and should have been taken into account either in determining whether the plea was made at the first reasonable opportunity or in the exercise of the discretion in s 9AA(2) does not arise for determination in this application for leave.

21 The ground of appeal does not have reasonable prospects of succeeding. Accordingly, leave to appeal must be refused in which event the appeal is taken to be dismissed.