Criminal law - Appeal against sentence - Cooperation - Failure to adduce evidence - Objectively legitimate forensic decision - No utilitarian value - No miscarriage of justice

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

Misuse of Drugs Act 1981 (WA), s 6(1)

Sentencing Act 1995 (WA), s 8(1)

Barany v The Queen [2000] WASCA 240

M v The Queen [2004] WASCA 236

McMahon v The State of Western Australia [2010] WASCA 143

MXP v The State of Western Australia [2010] WASCA 215

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Wheeler v The Queen [No 2] [2010] WASCA 105

1 McLURE P: This is an appeal against sentence for which the appellant requires an extension of time.

2 On 19 December 2013 the appellant was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA).

3 On 28 March 2014 the appellant was sentenced by Stavrianou DCJ to 3 years' imprisonment.

4 The only ground of appeal is that, based on new evidence filed in the appeal, there is a miscarriage of justice because the sentencing court was not made aware of the appellant's assistance to authorities.

5 The new evidence is contained in an affidavit sworn on 23 June 2014 by the appellant's solicitor, Sean de Ville.

6 The respondent opposes the appeal, relying on affidavits of Christopher Bell, a police officer, sworn on 12 August 2014 and Susan Markham, the manager of this appeal in the Office of the Director of Public Prosecutions (DPP), also sworn on 12 August 2014. There was no application for the cross-examination of any witness.

7 The delay in commencement of the appeal was short and is explained. I would grant an extension of time.

8 The factual findings for sentencing purposes are as follows. On 23 November 2012 police executed a search warrant at the appellant's residence and seized 23 g of methylamphetamine in three clipseal bags. The first bag contained 21.4 g of 61% pure methylamphetamine. The second contained 2.32 g of 73% pure methylamphetamine and the third bag contained 0.11 g of methylamphetamine. The purity of the methylamphetamine in the first and second clipseal bags was such that it could have been further diluted. If sold in 0.1 g lots, it was worth over $20,000.

9 In the course of the search, police also located drug dealing paraphernalia including digital scales, a bundle of clipseal bags and a quantity of the cutting agent MSM.

10 The appellant was aged 42 at the time of sentencing and was married with three young children. He had a prior criminal history which the sentencing judge characterised as 'old', the last offence of any relevance having been committed in 1999 (ts 393).

11 The appellant was a 'user/dealer ... slightly above a street dealer' (ts 393).

12 The appellant was charged with the offence on 23 November 2012. Within a month of his arrest, Detective Bell advised the appellant that if he were to provide quality information leading to the arrest of drug entities or seizure of prohibited drugs, he may receive a letter of recognition which could be taken into account at his sentencing. Shortly thereafter the appellant advised that he did not wish to provide any assistance to police.

13 After the appellant's conviction on 19 December 2013, sentencing was adjourned to 7 March 2014.

14 The day before his scheduled sentencing on 7 March 2014 (some 15 months after Detective Bell's first approach) the appellant telephoned Detective Bell and told him he had information that might assist in the investigation into a murder in New South Wales. Detective Bell arranged for the appellant to speak with detectives investigating that crime. Subsequently, New South Wales police advised that the appellant's information was rumour and speculation that was already circulating about the investigation and known by police.

15 On the same day that he provided information relating to the murder in New South Wales, the appellant indicated to Detective Bell that he might be willing to provide information on drug activities in Western Australia. In the course of the conversation, the appellant also told Detective Bell of his belief that money had been stolen from him by police officers in attendance at the search of his property on 23 November 2012. Detective Bell advised the officer in charge of the organised crime squad (OCS) of that allegation. He also advised a detective at the OCS that the appellant may be willing to provide drug intelligence.

16 On the afternoon of 6 March 2014 police notified the prosecutor of the appellant's approach. The prosecutor then notified the sentencing judge's associate, by email dated 6 March 2014, that at the hearing the following day the prosecution would seek an adjournment to allow police to make inquiries on matters that might be relevant in sentencing. A copy of that email was sent to the appellant's lawyer, Mr Hofmann.

17 On 7 March 2014, without any reference in open court to the reasons for the adjournment, the sentencing judge adjourned the proceedings to 28 March 2014.

18 On 24 March 2014, the prosecution notified the court and the appellant's lawyer, by email, that it would not be providing any further materials to the court for consideration at the appellant's sentencing hearing. It is implicit that no letter of recognition would be forthcoming. The police and the DPP did not consider that the appellant had rendered any assistance.

19 On 27 March 2014, the day before the appellant's adjourned sentencing hearing, Detective Bell received another telephone call from the appellant offering him information. The appellant gave him the first name, address and mobile telephone number of a person (X) who he claimed was in possession of multiple kilograms of methylamphetamine. Detective Bell advised the OCS of that information and submitted an intelligence report. The information was not acted upon. Detective Bell swears in his affidavit that in his experience the information provided by the appellant was not sufficient for police to obtain a search warrant or act upon it.

20 At the sentencing hearing on 28 March 2014 the appellant was represented by Mr Hofmann, an experienced criminal lawyer. He was aware of the State's position that a letter of comfort would not be forthcoming. Mr Hofmann did not seek an agreed statement of facts from the prosecution relating to the nature, extent and value of the alleged cooperation and, knowing of the police and prosecution position, did not contest the view that the appellant had not rendered any assistance. At the sentencing hearing the appellant did not adduce any evidence on the subject.

21 At the commencement of the appeal hearing counsel for the appellant sought to raise yet another matter of alleged cooperation which the appellant had brought to his attention that morning. The matter was stood down to enable counsel to obtain further instructions.

22 Counsel for the appellant subsequently informed the court that after his conviction but before being sentenced, the appellant attended court for the purpose of giving evidence for the prosecution in the trial of a person (Z) who was charged with possession of prohibited drugs with intent to sell or supply. Z and the drugs in his possession were in a vehicle licensed in the appellant's name when it was stopped by police. The appellant had provided a witness statement to police to the effect that he had not been in possession of the vehicle for about 12 months and knew nothing about the vehicle since that time. The appellant was not called as a witness at Z's trial.

23 The appellant claims the information relating to X provided on 27 March 2014 (the X information) has value which justifies a discount. There is a dispute as to the meaning of the evidence on that subject, exacerbated by imprecise language in the respondent's written submissions.

24 A letter dated 27 May 2014 from the DPP to the appellant's appeal counsel (annexed to Mr de Ville's affidavit) states that, in relation to the information, Detective Bell had advised that:

[T]here was nothing in Organised Crime intelligence holdings to substantiate [the appellant's] information, and the information was not acted on by Organised Crime due to operational demands.

25 Detective Bell's evidence in his affidavit is to the following effect. After receipt of the X information from the appellant on 27 March 2014 he contacted Detective Lockwood at the OCS and informed him of it. Detective Bell also submitted an intelligence report regarding that information. The intelligence report was filed for intelligence purposes and not acted upon. Detective Bell continued:

Based on my experience, this singular piece of information would not constitute sufficient grounds to obtain a search warrant.

As [the appellant] had no history of providing information, there was no way to verify the veracity of the information he provided.

I personally did not consider it sufficient to obtain a search warrant [38] - [40].

26 Paragraph [25] of the respondent's submissions concerns the X information. It relevantly states:

[Detective Bell] also advised a detective at the Organised Crime Squad that the appellant may have been willing to provide drug intelligence. That same officer later told Detective Bell that in light of the appellant's allegations of misconduct against Organised Crime Squad members, they would not deal with the appellant.

27 At the hearing of the appeal the court sought clarification of the last sentence. In supplementary written submissions the respondent says par [25] has to be read in context with the above quote from the DPP letter dated 27 May 2014 and pars [36] - [40] of Detective Bell's affidavit.

28 The respondent submits the word 'they' in the last line of par [25] misstates Detective Bell's affidavit in which he says that Detective Thomas told him that he (Thomas) had been advised not to have any dealings with the appellant. The use of the word 'they' in the submissions reflected an inference by the respondent that those OCS officers who attended the execution of the search warrant, and thus were the subject of the appellant's allegations of misconduct, had been similarly advised. I accept that explanation. There is no evidence before the court to support an inference that the OCS as a whole, or the police force more generally, had decided not to act upon the X information because of the appellant's allegation of misconduct during the execution of the search warrant.

29 I am not satisfied that there is any irreconcilable tension between the DPP's letter dated 27 May 2014 and Detective Bell's affidavit as to why the X information was not acted upon by the OCS. I infer the reasons given in the affidavit are the operational demands referred to in the DPP letter.

30 The uncontradicted and unchallenged evidence is that the appellant had no history of providing information; there was no way to verify the veracity of the X information before or after the sentencing on 28 March 2014; and it did not constitute sufficient grounds to obtain a search warrant. Although the information was put into the intelligence database, there is no evidence that it had subsequently been relied on for any law enforcement purpose.

Sentencing principles relating to cooperation

31 Cooperation with law enforcement authorities is a mitigating factor, as that expression is defined in s 8(1) of the Sentencing Act 1995 (WA). That is, cooperation decreases the culpability of the offender or decreases the extent to which the offender should be punished or both.

32 The term 'cooperation' in this context means the voluntary provision of information or assistance to law enforcement authorities that is of actual or potential value in their task of bringing to justice persons who have offended against the criminal law, at least where the offence is serious.

33 The cooperation may relate to an offence or offences committed by the cooperating offender which would not otherwise have come to the attention of authorities or the role of a co-offender or to offences committed, or to be committed, by others.

34 Cooperation in the sense in which I have defined it is mitigating even if it is motivated by self-interest rather than contrition. Cooperation has solely utilitarian benefits. In particular, it is in the public interest that persons who have offended against the criminal law be brought to justice.

35 Cooperation motivated by contrition is likely to increase the extent of the discount for cooperation.

36 Moreover, cooperation can be mitigating even if, at the time of sentencing, it is shown to have been ineffective or of no (or no significant) value in the criminal justice process: Barany v The Queen [2000] WASCA 240. In Barany the offender, at the request of federal police and at some risk to her personal safety, participated in an attempted controlled delivery of an inert substance in lieu of the prohibited drugs she had been couriering. That assistance proved to be of no value. Another example of its type is if an acquittal results notwithstanding the provision of inculpatory evidence in accordance with a witness statement provided by a co-offender.

37 However, the volunteered information or assistance must at least be shown to have had some value, actual or potential, to law enforcement authorities at the time it is provided or promised (or thereafter) even if the anticipated value does not eventuate, as in Barany.

38 There is no evidence from, or on behalf of, the appellant and no evidence from Mr Hofmann relating to Mr Hofmann's knowledge of the matters the appellant relies on in the appeal as cooperation. Mr Hofmann certainly knew of the possibility of a letter of comfort and that it had not materialised as is clear from his remarks in the sentencing hearing (ts 369). Based on Mr Hofmann's role and his receipt of correspondence from the DPP, it can be inferred that he was aware of the matters now relied on as 'new evidence' and made a forensic decision not to have a trial of issues on the nature, extent and value of the appellant's cooperation. That is an objectively legitimate forensic decision in the circumstances.

39 Against that background, the appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a heavy burden: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74]; McMahon v The State of Western Australia [2010] WASCA 143 [25] - [27].

40 Where the error of counsel involves the failure to adduce evidence, there are parallels with the tests for the admission of new or fresh evidence as the case may be: TKWJ [32]. New evidence is evidence which was available at sentencing or which could, with reasonable diligence, have been discovered.

41 However the new and fresh evidence tests have been formulated by reference to appeals against conviction. In the context of an appeal against sentence the test to be applied correlates with the requirement in s 31(4)(a) of the Criminal Appeals Act 2004 (WA) which enlivens this court's power to allow an appeal against sentence. Under that provision, the Court of Appeal may allow the appeal if, in its opinion, a different sentence should be imposed: Wheeler v The Queen [No 2] [2010] WASCA 105 [3], [53]. That test will be difficult to satisfy where the failure to adduce the new evidence is an objectively legitimate forensic decision.

42 The same point is made by Steytler J in M v The Queen [2004] WASCA 236. Steytler J said:

The guiding principle, as I understand it, is simply that the Court has a discretion to admit new evidence so as to avoid a miscarriage of justice [citations omitted]. For myself, I would be reluctant to say anything which might be taken to limit that broad principle. However, I think that it can safely be said that, where the further evidence was known to the applicant at the time of sentencing, it will only be in an exceptional case that the Court will be persuaded that the failure to disclose it has resulted in a miscarriage. Even criminal defendants will ordinarily be made to bear the consequences of their own decisions and there are sound policy reasons for emphasising the need to ensure that all relevant evidence is adduced before the primary tribunal ... and for discouraging the possibility of withholding evidence for tactical reasons [7].

43 The facts in this case are distinguishable from those in MXP v The State of Western Australia [2010] WASCA 215. In MXP both parties accepted that there was some cooperation on the part of the appellant but they had failed to provide the court with the necessary factual information to make a proper assessment as to the weight which should have been accorded to it in sentencing. That is a case in which the miscarriage of justice was sourced in the process rather than the outcome (as to which,

see TKWJ [76]). In this case the appellant has to show an outcome based miscarriage of justice.

44 The appellant's conduct relied on as cooperation was not motivated by remorse or contrition. The central issue is whether it had any utilitarian value at any material time.

45 The appellant's timing and drip feeding of his disclosures suggests he did not have confidence that they could withstand close and considered scrutiny. That conduct is relevant in determining whether to accept law enforcement authorities' assessment of its lack of utility. In particular, after initially refusing to cooperate, the appellant provided information relating to a New South Wales murder the day before his scheduled sentencing. When it was known that it would not attract a letter of recognition, the appellant provided a first name, address and phone number of a person alleged to be in possession of methylamphetamine the day before the next scheduled sentencing hearing. There is no evidence to contradict Detective Bell's assessment that the information was insufficient for police to obtain a search warrant or otherwise act upon it. Based on all the circumstances, there is no reason to reject the assessment of both police and the DPP that the appellant's disclosures were never of any utilitarian value. The appellant has failed to demonstrate that either of the disclosures were actually or potentially valuable at any relevant time so as to constitute cooperation.

46 The same is the case with the information raised for the first time at the hearing of the appeal. There is no evidence on which to find that the content of the appellant's statement had any role actual or potential in bringing Z to justice.

47 Moreover, even if the appellant's conduct had some very limited utilitarian value, the appeal must fail for two other reasons. First, the appellant's counsel made an objectively legitimate forensic decision which, having regard to the circumstances in which the disclosures were made, should not be second guessed in an appeal. Second, the sentence imposed on the appellant was well within the discretionary range even when regard is had to the matters on which he relies. I am not satisfied a different sentence should be imposed.

48 As the appellant has failed to demonstrate any miscarriage of justice, the appeal must be dismissed.