Criminal law and sentencing - Fast-track plea of guilty - Whether 10% discount manifestly inadequate - Whether different sentence should have been imposed

Sentence of 18 months' immediate imprisonment substituted

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

Burnes v The State of Western Australia [2017] WASCA 77

Gobetti v The State of Western Australia [2017] WASCA 130

Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601

Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380

LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355

Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99

Mather v The State of Western Australia [2017] WASCA 148

Mussarri v The State of Western Australia [2018] WASCA 46

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476

1. The appellant appeals against the sentence of 20 months' immediate imprisonment imposed on his conviction, following his plea of guilty to a charge of possession of methylamphetamine with intent to sell or supply.
2. His sole ground of appeal challenges the 10% discount for his plea of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA), as unreasonable or plainly unjust. On 31 May 2018, the court made orders upholding the appeal and substituting a sentence of 18 months' immediate imprisonment, with reasons to follow. These are our reasons.

1. The facts were not in dispute before the sentencing judge, and are not in dispute before this court. They may be summarised as follows.
2. At about 6.00 pm on 14 July 2017, the appellant was standing outside an address in Baldivis, being spoken to by police in relation to a separate matter. Police officers searched the appellant. They located a small black leather satchel in the inner pocket of the jacket he was wearing. Inside that satchel was a medium-sized clipseal bag containing 4.37 g of methylamphetamine of 81% purity. Police also found another small clipseal bag inside the satchel containing .78 g of methylamphetamine. Thus, the total quantity of methylamphetamine was 5.15 g. Police also found $810 cash on the appellant's person. That was the subject of a separate charge in the Magistrates Court.
3. The appellant was arrested and taken to a police station. He participated in a video record of interview in which he admitted to giving some of the drugs free of charge to his partner and to swapping some of the drugs with friends for goods and services.

1. Before the sentencing judge, counsel for the appellant made submissions as to the appellant's plea of guilty. Those submissions included the following:

(1) The appellant entered a plea of guilty on 11 December 2017, which was the first hearing after counsel took instructions on 9 November 2017.[1]

(2) The appellant's plea of guilty saved the State considerable expense and time and reflected his willingness to put this chapter of his life behind him.[2]

(3) (In response to an observation from the judge that the appellant faced an overwhelming State case), the appellant made no admissions until he spoke to the police and there was nothing to indicate that the jacket was his. Further, there was room for issues concerning the admissibility of the video record of interview. The case was not properly seen as an overwhelming one.[3]

1. The State made the following submissions as to the appellant's plea of guilty:

(1) The State accepted that this was an early plea, observing that the first appearance was on 7 July 2017 and the plea of guilty came seven appearances later, in December 2017.[4]

(2) The State submitted that the plea was not necessarily at the very first reasonable opportunity, but it was 'certainly at a very early opportunity', given that it was committed on the fast-track.[5]

(3) The State expressed agreement with the judge's assessment of the strength of their case, particularly with regard to possession.[6]

(4) The State accepted that the plea of guilty facilitated the course of justice and saved the State preparing the matter for trial.[7]

1. The judge sentenced the appellant on the basis that he was a user of methylamphetamine and prepared to deal in the drug in order to fund his own acquisition costs.[8] Also, the appellant was prepared to share the drug with others, including his girlfriend.[9]
2. The appellant's offence was aggravated by the fact that at the time of its commission he was on bail for another matter.[10]
3. Given the focus of the ground of appeal, we set out his Honour's remarks as to the plea of guilty in full. His Honour said as follows:[11]

A plea of guilty is a mitigating factor which does warrant a reduction in sentence. Section 9AA of the Sentencing Act provides that a person who pleads guilty to a charge at the first reasonable opportunity provides the court with the option of reducing the head sentence to recognise the benefit to the State, and any victims or witnesses which result from the plea to the maximum extent of 25 per cent. I listened carefully to the submissions made on your behalf with respect to alternative courses of action open to you. I accept what has been said by your counsel.

Also I accept what the State has said in that regard. There is plainly a utilitarian benefit to the State by reason of the plea, because it has removed the need for a trial before a jury, or a trial of issues before a judge to determine the relevant facts.

Whether or not the plea is in fact consistent with genuine remorse and insight in relation to the seriousness of your offending is questionable, given the comments made by the authors of the pre-sentence report.

But Mr Jones, it does not matter because the position will be informed by the way in which you conduct yourself going forward in the future. The community obviously hopes that by reason of having to serve an immediate term of imprisonment on this occasion, you will, on release, appreciate that there is no utility in using or being involved in the possession and dissemination of prohibited drugs in the community.

...

In my view, having regard to the sentencing considerations which apply to the assessment of the discount for a plea, and bearing in mind what the Court of Appeal said in Mather v the State of Western Australia [2017] WASCA 148, the appropriate discount on sentence is 10 per cent.

The State's case was arguably a strong case, even with respect to possession in view of the material in its possession, and contained in the prosecution brief. However, as I have remarked, the plea does itself facilitate the course of justice, and that is reflected in the discount afforded to you.

The plea is also consistent with the admissions made by you in the course of your video record of interview, which is to your credit.

1. His Honour referred to well-known sentencing principles which are not challenged on appeal.
2. His Honour imposed a sentence of 20 months' imprisonment, to be served immediately.[12]

1. The appellant advances a single ground of appeal. It is that the judge erred in determining that the strength of the prosecution case was such that a reduction in sentence of only 10% was appropriate, notwithstanding that the appellant entered a fast-track plea of guilty.

1. It is clear from the appellant's submissions that the ground of appeal complains of implied error in the fixing of the discount for the plea of guilty.[13] The appellant submits that, notwithstanding that the State case was a reasonably strong one, it was not open, on a proper exercise of the sentencing discretion, to give a discount of only 10%.

1. The legal principles relevant to s 9AA were recently outlined by Buss P in Mussarri v The State of Western Australia.[14] We adopt those principles.
2. The extent of the reduction in sentence made under s 9AA is amenable to appellate review by this court.[15] Absent express error, it is for the appellant to demonstrate that the discount was manifestly inadequate; in other words, that the result was unreasonable or plainly unjust.[16]
3. The sentencing judge did not find, and in our view it could not be said, that the plea was entered at the first reasonable opportunity. His plea was entered at his eighth appearance in the Magistrates Court. Moreover, the appellant absconded on bail for a period of about a month, during the 4 1/2 months from when he was charged until he entered his plea of guilty.
4. As the plea was not entered at the first reasonable opportunity, a discount of 25% was not available.[17]
5. The strength of the State case is relevant to the benefits to the State from the plea and, thus, to the extent of the discount.[18] The sentencing judge characterised the State case as 'arguably a strong case'.[19] A characterisation of the State case as strong was well open to his Honour. The State would have readily proved that the appellant was wearing a jacket in which was found a satchel containing over 5 g of methylamphetamine. The presumption of intent would have arisen, given that the amount exceeded 2 g.[20] In any event, absent evidence to the contrary, an inference that the appellant knew of the presence of the drugs in his jacket would readily have been drawn. Thus, any defence advanced by the appellant would have required evidence from him, either to explain his apparent possession of the drugs or in relation to the question of intent to sell or supply. Further, the State case would not have been substantial in length or complicated in character.
6. Notwithstanding these matters, the appellant's plea of guilty gave rise to substantial benefits to the State. As the plea came before any committal hearing, the State was saved from the trouble and expense of preparing a prosecution brief. Further, the need for a trial was avoided, with all the benefits to the State and its witnesses that that entails. The appellant's plea provided all of the benefits to the State identified by Buss JA in Abraham v The State of Western Australia,[21] namely:

(a) securing the conviction of a person who has committed a criminal offence;

(b) the Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;

(c) if the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;

(d) avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and

(e) the more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.

1. Further, while, for the reasons we have given, the plea was not entered at the first reasonable opportunity, the plea was, as the State conceded before the sentencing judge[22] and before this court,[23] entered 'at a very early opportunity'. The plea was a fast-track plea, entered less than five months after the offence had been committed.
2. In evaluating the appropriate discount for a plea of guilty, the evident purpose of s 9AA should be borne in mind. The following observations in Gobetti v The State of Western Australia[24] are apposite:

It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.

1. The respondent's submissions emphasised that the appellant absconded while on bail for a period of about a month.[25] The respondent submits that this circumstance sets this case apart from other cases and justifies the 10% discount given by the sentencing judge. The respondent accepted that, without the circumstance that the appellant had absconded, the discount of 10% might very well be erroneous.[26] In our view, the confined considerations relevant to the s 9AA discount mean that the appellant's absconding has only limited weight in the proper determination of the discount. As is well established, s 9AA(2) exhaustively states the factors or criteria, apart from the timing of the guilty plea, which may be taken into account in determining the appropriate discount.[27] Subjective factors relating to the offender are not relevant in that regard.[28] The appellant's conduct in absconding bears objectively on whether the plea was entered at the first reasonable opportunity, and, more generally, on an assessment of the timing of the plea. However, insofar as the appellant's absconding affects any discount for remorse, that is a matter operating outside the ambit of s 9AA.
2. In our respectful opinion, taking into account all the circumstances relevant to an evaluation of a discount under s 9AA, including those to which we have referred in [17] - [23], it was not open to the sentencing judge, on a proper exercise of discretion, to award a discount of 10%. In our opinion, that outcome reveals that something of significance must have gone wrong in the exercise of the discretion. In other words, there must have been a material misapplication of principle.
3. The parties referred to a number of cases, in which a ground of appeal complained of the s 9AA discount, as reasonably comparable cases.[29] These cases seem to us to be of very limited assistance in evaluating whether the discount in the present case reveals implied error. Of course, the dismissal of an appeal against the extent of a discount does not fix the limits of the proper exercise of the discretion in determining the extent of the discount. To the extent the cases provide any assistance, they do not positively support the discount of 10% given in this case. None involved a fast-track plea of guilty for which a discount of 15% or less was given. In Marshall, a discount of 15% was given for a plea entered about one month before trial. In Rossi, there was a discount of 12.5% for a plea entered at the fourth or fifth disclosure/committal hearing. In Gobetti, a plea entered after substantial prosecution disclosure, more than a year after the charge was laid, was given a discount of 13%. That discount was described as being at the lower end of what was appropriate.[30]
4. For these reasons, we would uphold the ground of appeal. That directs attention to whether, on this court's re-exercise of the sentencing discretion as a whole, a different sentence should have been imposed.[31]

1. The respondent submits, and we agree, that the appellant has not demonstrated that the sentence of 20 months' immediate imprisonment imposed by his Honour is manifestly excessive.[32] However, that is not the question when, as here, a material error in the course of exercising the sentencing discretion has been established. In those circumstances, this court must re-exercise the sentencing discretion itself. Once a material express error is shown, the appellate court's power to intervene is enlivened and it becomes its duty to resentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should have been imposed.[33] In our view, the same approach applies where, as here, implied material error has been demonstrated in the determination of the s 9AA discount. As we have said at [16] above, the discount under s 9AA for a plea of guilty is itself amenable to appellate review. Once a material error has been demonstrated in the determination of the s 9AA discount, the appellate court's power and duty to resentence is enlivened, subject to its separate and independent determination of whether a different sentence should have been imposed.
2. The so-called tinkering principle does not, of course, apply where this court's jurisdiction to resentence an offender is enlivened and the court re-exercises the sentencing discretion.[34]
3. The appellant's offence involved 5.15 g of methylamphetamine of a very high degree of purity. He was a user of methylamphetamine who shared the drug with others, including his girlfriend, and who was prepared to deal in the drug in order to fund his own acquisition costs.[35] His offence was aggravated by the fact that at the time of its commission he was on bail for another matter.[36]
4. Taking into account the circumstances outlined in [17] - [23] above, pursuant to s 9AA of the Sentencing Act, we discounted the head sentence (as defined in s 9AA(1)) by 17.5% on account of the appellant's plea of guilty.
5. After applying that discount, and after a further discount on account of other mitigating factors referred to by his Honour (in particular, the appellant's admissions to police), we imposed a sentence of 18 months' imprisonment to be served immediately. We did not disturb the order for parole eligibility or the commencement date of the sentence.

1. For these reasons, we upheld the appeal, set aside the sentence imposed and substituted a sentence of 18 months' immediate imprisonment, with parole eligibility, backdated to 28 October 2017.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH

[14] Mussarri v The State of Western Australia [2018] WASCA 46 [42] - [52].

[18] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [57] - [58].

[20] Misuse of Drugs Act 1981 (WA) s 11, sch V.

[24] Gobetti v The State of Western Australia [2017] WASCA 130 [79].

[27] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380 [24]; Mussarri [48].

[28] Abraham [52]; Mussarri [48] - [49].

[29] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508; Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99; Sathitpittayayudh v The State of Western Australia [2015] WASCA 152; Gobetti; Mather v The State of Western Australia [2017] WASCA 148.

[31] Criminal Appeals Act 2004 (WA), s 31(4)(a).

[32] Respondent's submissions [46], [47].

[33] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [35]; LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355 [106]; Burnes v The State of Western Australia [2017] WASCA 77 [38].

[34] See The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476 [114].