Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against conviction - Application for leave to appeal against sentence - Stealing motor vehicle and fraud - Whether sentencing judge should have granted an application for an adjournment - Whether sentencing judge should have granted an application to change pleas - Whether convictions are a miscarriage of justice - Whether sentence manifestly excessive

Borsa v The Queen [2003] WASCA 254

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496

Gok v The Queen [2010] WASCA 185

House v The King [1936] HCA 40; (1936) 55 CLR 499

Krijestorac v The State of Western Australia [2010] WASCA 35

Leary v The Queen [1975] WAR 133

Lewis v The State of Western Australia [No 2] [2008] WASCA 155

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501

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

Myers v Myers [1969] WAR 19

Pilkington v The Queen [1955] TASStRp 11; [1955] Tas SR 144

Snook v The State of Western Australia [2014] WASCA 134

The State of Western Australia v Silich [2011] WASCA 135

Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

Webster v The Queen [2015] WASCA 20

Wilhelm v The State of Western Australia [2013] WASCA 188

Wright v McMurchy [2012] WASCA 257

3 HALL J: On 22 March 2013 the appellant appeared in the District Court and pleaded guilty to one charge of stealing a motor vehicle and one charge of fraud. On 28 May 2013 she was sentenced to 10 months imprisonment on each count to be served concurrently and those sentences were suspended for a period of 12 months. She now seeks leave to appeal against both her convictions and sentences.

4 The charges were based on an allegation that the appellant had borrowed a car which she then advertised and sold without the permission of the owner. It was also alleged that at the time of selling the car she represented that she was the owner. The appellant maintains that she is not guilty of these offences because she had been given permission by the owner to sell the car.

5 At the sentencing hearing on 28 May 2013, the appellant applied to change her pleas but sought that that application be adjourned. The learned sentencing judge, Martino CJDC, refused both of those applications. The essential issues on these appeals are whether the application to change the pleas should have been adjourned and, in any event, whether the appellant should have been permitted to change her pleas.

6 The appellant originally filed a notice of appeal within time on 17 June 2013. This notice was not in proper form because it did not state whether the appellant was seeking to appeal against her conviction, her sentence or against some other order or decision. After several attempts to contact the appellant she was spoken to by an officer of the Court of Appeal office on 12 August 2013. The appellant said that it was her intention to appeal against both her conviction and her sentence. She was advised that she would need to amend the original notice to clarify that it was an appeal against conviction and file a fresh notice of appeal against sentence together with an affidavit seeking an extension of time in respect of that appeal. A letter confirming these requirements was sent to the appellant on 20 September 2013.

7 On 4 October 2013 the appellant filed an amended notice of appeal against conviction, a fresh notice of appeal against sentence and an

affidavit. In her affidavit the appellant referred to the course of events I have summarised. She also stated that there had been a delay due to difficulties in obtaining legal aid, that she had been advised that her application for aid had been lost and that she intended to resubmit an application. In the circumstances I would grant the extension of time.

8 The appellant was not granted legal aid for these appeals. She has at all times been unrepresented on these applications. For that, and other reasons, there has been a long delay in resolving these matters. The appellant's case in each appeal was not filed until 9 July 2014, after numerous directions hearings and extensions of time to file the necessary papers.

9 A hearing of the applications for leave was listed for 3 October 2014. The appellant appeared in person and sought an adjournment on the basis that she had not been given sufficient notice of the hearing and was not properly prepared. She also said that she believed that there was a possibility that the Mental Health Law Centre would agree to provide her with representation. She said that she also wanted to apply to the Western Australian Bar Association for pro bono representation. An adjournment was granted to 3 November 2014. The appellant was told that if there was no appearance on that date the court would proceed to determine the applications on the papers.

10 The date of the hearing was subsequently changed to 18 November 2014 and a Registrar's notice to attend was sent to the appellant. On the day before the adjourned hearing the appellant filed an affidavit in which she stated that she was sick and had been unable to prepare for the hearing and remained too sick to attend court. Two medical certificates annexed to the affidavit referred to her having been unwell for the previous week with a 'flu like illness' and 'symptoms of a respiratory and gastrointestinal tract infection'. The appellant also stated that the Mental Health Law Centre had decided not to provide her with representation but that an application to the Bar Association was pending and would take four to six weeks to be assessed. An adjournment was granted on the basis of ill health and the hearing was rescheduled for 28 November 2014.

11 Again, the day prior to the rescheduled hearing, the appellant filed an affidavit seeking an adjournment. She stated that she continued to be unwell and provided a medical certificate in support. She stated that her application to the Bar Association was still pending and that she had also made an application to the Law Society of Western Australia Law Access Pro Bono Referral Scheme. On 28 November 2014 orders were made that the appellant be permitted to file and serve additional written submissions in support of her applications for leave to appeal by 4.00 pm on 14 January 2015 and that the applications would then be finally determined on the documents (including all written submissions) filed by the appellant, without oral submissions.

12 On 14 January 2015, the last day for filing written submissions, the appellant filed an affidavit seeking a further extension. In her affidavit the appellant stated that she had been advised that the Bar Association would not consider her application until the application to the Law Society had been resolved. She stated that she understood that the Law Society needed at least three more weeks to determine her application. She stated that she was unable to prepare submissions herself due to the effects of post-traumatic stress disorder (PTSD) and she requested a further two months to allow the application to the Law Society to be finalised and, in the event it was successful, to brief a barrister. Without commenting on the merits of this application, the court allowed a further extension to file written submissions to 4.00 pm on Monday 2 February 2015. No further submissions were filed.

13 These applications have been on foot for well over a year. In that time the applicant has had ample opportunity to pursue all possible avenues for obtaining legal representation. The possibility of obtaining legal aid was exhausted long ago. At a directions hearing on 9 June 2014 Mazza JA noted that, while it was not ideal that the appellant represented herself in these appeals, it was a reality that she must face and deal with. At that stage it was clear that the appellant would not be granted legal aid in respect of the appeals: Snook v The State of Western Australia [2014] WASCA 134. Applications to the Bar Association and the Law Society were not apparently made until relatively recently. There is no reason to believe that such applications have any prospect of success. It is not in the appellant's interest, nor in the public interest, for these matters to be further delayed.

14 As to the decision to resolve these applications on the documents, it is plain from the affidavits filed by the appellant that she experiences anxiety at the prospect of a hearing and considers that she would not be able to make appropriate oral submissions on her own behalf. There appears to be no likelihood that this position will change in the future. In these circumstances dealing with the matters on the documents, with leave to file further written submissions, provided the fairest way of bringing these matters to a conclusion. Whilst the appellant did not take up the opportunity to file additional submissions, her appellant's cases contained draft grounds of appeal and 24 pages of detailed written submissions. Section 27(4)(a) of the Criminal Appeals Act 2004 (WA) provides that this court may decide whether or not to grant leave to appeal with or without oral submissions from the parties to the appeal.

15 At the sentencing proceedings on 28 May 2013 the prosecutor read a statement of facts and tendered the prosecution brief. The appellant did not admit the facts. The sentencing judge found that the elements of the charges were proven on the pleas of guilty but made no other findings of fact.

16 The appellant seeks to challenge her convictions by arguing that, notwithstanding her guilty pleas, she could not have been found guilty on the available evidence and that, therefore, there has been a miscarriage of justice. For this reason it is necessary to refer to the evidence tendered at the sentencing hearing. The statements of witnesses in the prosecution brief are relied on in setting out the following summary.

17 The charges arose out of events in 2009. In that year Mr James Cunneen had become acquainted with the appellant in the course of his role as a volunteer with the St Vincent De Paul Society. In June of 2009 Mr Cunneen made arrangements for the appellant and her children to spend nine days in a holiday camp in Yallingup. He allowed the appellant to use his 2004 Toyota Camry motor vehicle to get to the camp.

18 On 5 June 2009 Mr Cunneen was informed that officers of the Department of Child Protection had obtained a court order to take custody of two of the appellant's children. On 7 June 2009 Mr Cunneen spoke with the appellant by telephone and advised her of the order and asked her to return with his car in order to contest the order. According to Mr Cunneen, the appellant refused.

19 On 8 June 2009 Mr Cunneen telephoned the police and reported the registration and description of his car. He did this because he knew that police wished to speak to the appellant. On 9 June 2009 Mr Cunneen received a telephone call from the appellant asking him for money and requesting him to look after her dogs. Mr Cunneen refused. He then travelled to the United Kingdom on 15 June 2009.

20 On 15 July 2009 Mr Michael Hurlbatt responded to an advertisement in the Quokka Newspaper offering a Toyota Camry sedan for sale. Mr Hurlbatt spoke to the appellant and made an arrangement to meet her at the Whitfords City shopping centre for the purpose of viewing the car. The appellant told Mr Hurlbatt that the vehicle belonged to her mother who, she said, had signed a letter of consent for the appellant to sell the vehicle on her behalf. Mr Hurlbatt was not shown such a letter. He agreed to purchase the car for $10,500, which he paid in cash.

21 The appellant signed the Sellers Declaration on the Transfer papers and wrote 'sold with permission' above her name and the seller's details. The appellant told Mr Hurlbatt that she needed to sell the car because she had urgent family business in the United Kingdom and needed the money for air tickets.

22 Mr Hurlbatt subsequently discovered that the car was owned by Mr Cunneen and telephoned him in the United Kingdom. Mr Cunneen told Mr Hurlbatt that he had no idea that the car had been sold and had never given permission to the appellant to sell it. Following this call both Mr Cunneen and Mr Hurlbatt reported the matter to the police.

23 On 18 July 2009 Mr Cunneen returned to Perth and spoke to the appellant by telephone. He told her that she needed to give the money back to Mr Hurlbatt. She said that she could not do so because she had spent it.

24 The appellant was charged with stealing the car and gaining a benefit by fraud. A summons issued on 30 July 2009 and the appellant first appeared in the Magistrates Court on 17 August 2009. She appeared over 10 times in that court, represented by several different lawyers, before being committed to the District Court for trial on 3 December 2010. She first appeared in the District Court on 25 February 2011. Between that date and the date she was sentenced, the appellant appeared more than 30 times in the District Court. On several other occasions the matter was listed but the appellant failed to appear.

25 The course of the proceedings in the District Court is relevant because it provides the context in which the sentencing judge came to deal with the applications made by the appellant on 28 May 2013. Over the two years that proceedings continued in the District Court the issue of whether the appellant had permission to sell the car was raised numerous times. Issues as to the appellant's state of health, fitness to be tried and ability to obtain legal representation were also raised.

26 Between 25 February 2011 and 24 June 2011 a number of trial listing hearings occurred. The appellant was unrepresented at these hearings but advised the court that she was pursuing Legal Aid Commission appeal processes to obtain a grant of legal aid. On 27 May 2011 Mr S F Rafferty appeared as amicus curiae and advised that a limited grant of legal aid had been made. This grant was limited to providing the appellant with advice. If the advice was followed the grant would be extended, if not it would be terminated.

27 On 24 June 2011 the appellant appeared unrepresented and said that she had not yet received the advice for which legal aid had been granted. She then referred to a tape 'where the accuser admits that it was a setup'. She said that she wanted to liaise with the DPP in order to provide a copy of the tape. She also said that a directions hearing was required in regard to obtaining documents relevant to the defence. The matter was then set down for trial for five days commencing on 10 October 2011 and a directions hearing was set for 1 August 2011.

28 On 1 August 2011 the appellant was again unrepresented and was asked whether she proposed to act for herself at trial. She said that she was seeking privately funded legal representation and the matter was adjourned to 29 August 2011. On that date the appellant again appeared unrepresented and said that she had not yet been able to obtain legal representation. She again referred to a tape recording of a discussion with Mr Cunneen that she said she would seek to rely upon at trial. She said that she wished to make an application for the charges to be discontinued as an abuse of process, an application to take a deposition from Mr Cunneen and an application to adjourn the trial. These applications were based on the appellant's assertion that she had a defence to the charges and had not had time to arrange legal representation. Martino CJDC said that the appellant had been given more than enough time to arrange representation and that any defence could be put at the trial. The applications were dismissed.

29 On 12 September 2011, the appellant again appeared unrepresented in a duty judge list. The appellant was again asked whether she would be represented at trial. She said that she was still awaiting legal advice and until that was received she could not retain a lawyer for the trial. She told the court that she was unfit to represent herself due to the effects of PTSD. She handed up a report from a psychologist in support of that claim. She was informed that the matter would be adjourned to 19 September 2011 at which time she was expected to have retained a lawyer for the trial.

30 On 19 September 2011 the appellant was represented by Mr J A Davies. He advised that he had not yet been formally engaged and was unavailable to represent the appellant on the trial dates. He said he may be available in November 2011, but would need another week before he could confirm that position. The matter was then adjourned to 26 September 2011, without vacating the existing trial dates.

31 On 26 September 2011, the appellant was again represented by Mr Davies. He advised the court that he would not be acting for the appellant at trial and sought leave to withdraw. The appellant then made an application for the trial to be permanently stayed on the basis that she would be unrepresented through no fault of her own and that the trial would be unfair if she was required to proceed unrepresented relying on Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. That application was adjourned to 29 September 2011. On that date orders were made for the filing of submissions and the application was adjourned for hearing on 4 November 2011. The trial dates were vacated. The appellant also said that a 'third party' was holding copies of the tape recordings and would not provide them to her. She was told that she could issue a witness summons.

32 On 4 November 2011 the appellant appeared at the directions hearing in regard to the Dietrich application. After some submissions by the appellant the matter was adjourned to a hearing on 11 November 2011. On that date, the appellant did not appear. However, a representative of the Legal Aid Commission was in attendance and provided some information to the prosecutor. The prosecutor said that whilst no grant of aid had yet been made a grant of aid to the appellant was highly likely but would again be conditional. The conditions were to be that the appellant provide clear and concise instructions to counsel, that she follow the advice of counsel, that she not provide counsel with an overwhelming amount of documents and that she not record conversations with counsel. If the advice was to plead guilty there would be no funding for a trial. In light of this it was unnecessary to resolve the Dietrich application and the matter was adjourned to 25 November 2011 for a trial listing hearing.

33 The appellant did issue witness summonses to produce documents, returnable on 6 October 2011. On that day the two witnesses concerned, Ms Isabel Nikoloff and Mr Terry Singleton, produced computers and thumb drives in compliance with the summonses. Mr Singleton informed the court that the items he produced were used for business purposes and he would be inconvenienced by being deprived of them. Orders were made allowing both witnesses to retain the items produced but directing them not to delete any material and to return the items to the court on seven days' notice, pursuant to s 164(3) of the Criminal Procedure Act.

34 The appellant did not appear on 25 November 2011. She emailed the court to say that she could not attend. The matter was then adjourned to 2 December 2011. On that date the appellant appeared unrepresented and said that her application for legal aid had still not been resolved. The matter was set down for a hearing of the Dietrich application on 21 December 2011.

35 The appellant failed to appear on 21 December 2011 and a warrant issued for her arrest. On 22 December 2011 the appellant appeared and said she had been confused as to the date of the hearing. Bowden DCJ noted that he had received a copy of a letter from the Legal Aid Commission of the same date which stated that aid had been originally granted on 17 May 2011 conditional on, amongst other things, the appellant following counsel's advice. She did not follow the advice given and the grant of aid was then terminated. There was no indication that there would be any further grant of aid. The appellant then said that she had not been able to adequately prepare for the Dietrich hearing. In light of this, his Honour listed the Dietrich application for determination on 6 February 2012 and, in the event that application was unsuccessful, for the trial to commence on 7 February 2012.

36 On 29 December 2011 the matter was mentioned before Goetze DCJ. This was because the appellant had filed an application seeking dismissal of the charges and for an adjournment of the Dietrich application. The appellant again made reference to tapes of conversations with 'the State's three main witnesses' which she said were inconsistent with their witness statements. She said that she intended to obtain a transcript of the recordings to disclose to the State. His Honour suggested that she could give a copy of the tape to the State. The prosecutor said that the State would not accept a transcription prepared by the appellant and that if the tapes existed the prosecution wished to have an opportunity to check them. The appellant said that she would seek legal advice as to disclosure of the tape. His Honour then made a number of programming orders regarding resolution of various applications, and also made an order that a copy of the tapes and any evidence sought to be relied upon by the appellant on her application to have the charges dismissed be served on the State by 5 January 2012. His Honour emphasised that this included a copy of the tapes the appellant had referred to. The appellant said that the recordings were on her home computer and that she would have a copy made by a business in Balcatta.

37 On 25 January 2012 the appellant appeared before Bowden DCJ on her application to dismiss the State case. She applied for the hearing to be adjourned. Amongst other things, she said that she had been unable to comply with the order to copy the tapes and provide them to the DPP because, although she had the primary tape, the only other copy had been given to Mr Singleton, who she was prohibited from approaching due to a restraining order. She also said that a business that she had intended to use to make a copy of the tape had closed. His Honour refused the application for an adjournment and the appellant then proceeded to argue her application for the State case to be dismissed. During argument the appellant again referred to the tape. His Honour pointed out that she had been given an opportunity to provide a copy of the tape and had not done so. The appellant said that she would make a copy of the tape if the DPP would agree where that could be done. His Honour said that there was no need for the DPP to make an agreement in this regard. The appellant did not produce the tape and said that she was unwilling to reveal defence evidence before trial. After lengthy submissions by the appellant his Honour refused the application for a permanent stay. At one stage the appellant said she did, after all, want to play the tape, but then said she could not find it. The appellant also asked that Ms Nikoloff and Mr Singleton be required to produce the material that was the subject of the witness summonses to them. His Honour made an order in that regard. His Honour then explained, at length and in detail, how the trial would proceed in the event that the appellant remained unrepresented.

38 The matter was then adjourned to 3 February 2012. On that date the appellant failed to attend, however Ms Nikoloff and Mr Singleton were in attendance. They again produced various items of computer equipment and mobile telephones. These items were received by the court. An arrest warrant issued for the appellant.

39 The appellant also failed to appear on 6 February 2012. On 7 February 2012, the first day of the trial, she appeared at 1.00 pm after being arrested on the warrant. She continued to press an application that the trial be stayed on Dietrich grounds. Mr D Brewer, a psychologist, was called to give evidence about PTSD and his treatment of the appellant. Mr Brewer said that the appellant had been referred to him by her GP. He had diagnosed PTSD and was of the opinion that this condition would make it difficult for the appellant to give evidence or present her case in an intelligible manner. Furthermore, the stress of a court case was likely to be detrimental to her mental health. He said he had not considered the criteria for fitness to be tried because he thought that this was beyond his 'scope' (ts 457). Whilst the appellant had a tendency to be argumentative, she was able to provide instructions to a lawyer (ts 461). He also confirmed that the appellant understood the charge, the purpose of the trial, the right to challenge jurors and the ability to follow the evidence of witnesses (ts 483). He noted that the appellant had an impaired ability to hear on some occasions (ts 483). He had some concerns about her ability to communicate her defence because she had a tendency to become convoluted and confused when stressed, but she was capable of putting her version of events (ts 484). She was also capable of putting questions to witnesses (ts 485). Mr Brewer was unable to say whether the appellant would be capable or incapable of representing herself at a trial beyond the details as to her abilities that he had referred to (ts 512).

40 The hearing of the application (and other applications brought by the appellant) continued from 8 to 10 February 2012. Mr Singleton was called as a witness by the appellant and said that the appellant had formerly used his computer. She had stored documents on the computer, including audio recordings, but he had deleted all her documents after a falling out and prior to receiving the summons. He had no knowledge of the contents of the audio files. The appellant said that, notwithstanding items being deleted from Mr Singleton's computer, she had a copy of a letter of permission from Mr Cunneen and an original tape recording of a conversation with him on the same subject (ts 609). When asked to produce these items she said that they were on a computer that was with a friend in either England or Portugal (ts 613).

41 Ms Nikoloff was also called to give evidence. She said that some data had been downloaded by her from Mr Singleton's computer onto a thumb drive, but later deleted. She had no knowledge of a tape recording of Mr Cunneen, though she had received what purported to be a draft transcript of such a recording from the appellant (ts 698). The proceedings were delayed because, on 9 February 2012, the appellant filed a notice of originating motion in the Supreme Court seeking a review of Bowden DCJ's decision not to stay the trial (ts 717). That motion was dismissed the same day (ts 722). His Honour made an order permitting the appellant to have the computers and thumb drives examined by a computer expert to recover any voice recordings that related to Mr Cunneen (ts 743). The appellant gave evidence at length on 10 February 2012 regarding her mental health and her efforts to obtain legal representation.

42 At the completion of the hearing on 10 February 2012 Bowden DCJ refused the appellant's Dietrich application and her applications to adjourn or stay the proceedings (ts 919 - 920). His Honour gave detailed oral reasons for his decisions (ts 895 - 920). He summarised the history of the proceedings and the submissions made by the appellant. His Honour noted that the matter had been twice set down for trial and that the appellant had failed to summons witnesses because she said she had received advice that the trials would not proceed. He said that the appellant had been charged in July 2009 and if she had not obtained the tapes and taken steps to have them boosted (as she said was needed) in the time that had since elapsed it was not likely that any further adjournment would change that position (ts 907).

43 As regards the Dietrich application, Bowden DCJ said that the only realistic source of legal representation was with a grant of legal aid. He did not accept a claim by the appellant that the Attorney-General was willing to make an ex-gratia payment to cover her legal expenses. Legal aid had been previously granted on the condition that the appellant follow counsel's advice. She had not done so. In these circumstances she had effectively deprived herself of representation (ts 919).

44 His Honour considered whether the appellant's PTSD made a fair trial impossible (ts 912 - 918). He referred to Mr Brewer's evidence and concluded that the appellant understood the charges, the effect of her pleas and the purpose of a trial. He accepted that a trial would be stressful for the appellant and may affect her health, but that was a position that confronted many accused persons. He noted that the appellant had 'a high capacity' but had focussed herself solely on obtaining an adjournment. He concluded that the appellant was capable of representing herself at a trial and that such a trial would not be unfair.

45 The matter was then adjourned for trial commencing on 13 February 2012. The appellant continued to argue that she would not have sufficient time to prepare. She claimed to have other commitments and said she would not be present on 13 February 2012. His Honour did not accept the validity of these claims and extended bail to 9.15 am on that day.

46 On 13 February 2012 the appellant did not appear for her trial. An arrest warrant issued and the jury panel was discharged.

47 The appellant was not arrested until November 2012 and then appeared before Martino CJDC on 2 November 2012. Bail was refused and the appellant was remanded in custody to 9 November 2012. A number of further adjournments occurred in order to determine whether lawyers who had been approached to act for the appellant would be willing to do so. Finally, on 13 December 2012 the appellant appeared represented by Mr B S Hanbury. The matter was then again set down for trial, commencing on 15 February 2013 for four days.

48 On 17 January 2013 the appellant appeared before Martino CJDC and said that she did not wish Mr Hanbury to act for her. There was a reference to Mr J A Davies now acting for the appellant, but an email from Mr Davies to the court stated that he did not act for her. The appellant also said that she intended changing her plea to one of guilty (ts 997). Mr Hanbury said he had concerns regarding the appellant's fitness to stand trial. An application that had been previously filed for an assessment in that regard was adjourned to 24 January 2013. On that date Mr Hanbury made an application to cease to act on the ground that his position had become untenable. The appellant said that she would seek to instruct another solicitor. His Honour granted the application of Mr Hanbury to cease to act.

49 On 31 January 2013 the appellant appeared unrepresented before Martino CJDC. She said that she was having difficulty in retaining a lawyer, although she had approached Mr M R Gunning and believed that he was willing to act for her. His Honour then made an order that the appellant be assessed by a psychiatrist to determine her fitness to stand trial. He also vacated the trial dates.

50 On 7 February 2013 the appellant again appeared in person before Martino CJDC. She made a number of applications, including:

(1) for the psychiatric assessment ordered on 31 January 2013 to be completed within 30 days;

(2) for the matter to be set down for trial in March; and

(3) for a determination of whether the appellant could change her plea (to one of guilty) without legal representation.

His Honour made orders for the psychiatric report to be prepared by 15 March 2013, for the trial to be listed as soon as possible and told the appellant that if he was satisfied that she understood the implications of entering a plea of guilty she would be able to do so without legal representation: s 129(2) Criminal Procedure Act.

51 On 14 February 2013 the appellant appeared in person before Martino CJDC. His Honour referred to an email he had received from Mr Gunning indicating that he had been retained to represent the appellant at either a plea hearing or a bail application but was not in a position to represent her at a trial. Trial dates were set for four days commencing on 25 March 2013.

52 On 21 February 2013 the appellant appeared again before Martino CJDC, on this occasion represented by Mr Gunning. The appellant raised the issue of obtaining copies of the recordings which she claimed were critical to her defence. She said that those recordings had been stored on a computer that was in the possession of Mr Singleton. The matter was adjourned to allow the appellant to contact Mr Singleton about the computer.

53 On 28 February 2013 the appellant appeared before Martino CJDC, again represented by Mr Gunning, for the purposes of making a bail application. Bail was refused. Mr Gunning then said that, having completed making the bail application, he was ceasing to act for the appellant. A procedure was then set down for the appellant to file and serve witness summonses in respect of the trial.

54 An assessment of the appellant by a psychiatrist was undertaken and a report was prepared by Dr S Febbo dated 12 March 2013. The appellant told Dr Febbo that she had entered a plea of not guilty but that 'she may change her plea depending on what evidence she is able to access'. She was able to satisfactorily explain the meanings and consequences of pleas of not guilty and guilty. Dr Febbo was of the view that the appellant was able to follow the course of a trial, was able to understand the substantial effect of evidence presented by the prosecution in a trial and was able to properly defend the charges. He said that having regard to the appellant's history of severe anxiety it was his view that she required legal representation. With such representation she was fit to stand trial.

55 On 18 March 2013 the appellant appeared before Martino CJDC. Ms A S Rogers appeared and advised his Honour that whilst she had not yet filed a notice of acting she had received instructions from the appellant. His Honour made reference to the fact that an order had been made on 23 November 2012 by the State Administrative Tribunal appointing the public advocate as a limited guardian for the appellant. The public advocate was seeking a copy of the report of Dr Febbo that had been prepared for the District Court. Ms Rogers said that the appellant wished to oppose the release of the report. The matter was then adjourned to 21 March 2013 to determine the admissibility of a video record of interview between the police and the appellant.

56 On 21 March 2013 the appellant appeared before Martino CJDC represented by Ms Rogers. Pre-trial issues were resolved including the appearance of witnesses via video link. Argument regarding the admissibility of the interview was adjourned to a later date.

57 On the following day, 22 March 2013, the matter was brought back on before his Honour on the basis that there would be a change of plea. The appellant was re-arraigned on each of the charges and entered pleas of guilty. The pleas were unequivocal. His Honour then asked Ms Rogers whether she was satisfied that the appellant understood each charge, plea and the consequences of those pleas. Ms Rogers confirmed that that was the case (ts 1104 - 1105).

58 His Honour then ordered judgments of convictions be entered on both counts and vacated the trial listed to commence on 25 March 2013. Ms Rogers then sought bail for the appellant pending sentence. One of the reasons that bail was sought was to enable the appellant to attend upon her previous psychiatrist and obtain an independent report for use in the sentencing process. There was a brief adjournment so that Ms Rogers could take instructions from the appellant. On resumption the following was said:

ROGERS MS: Your honour Ms Snook wishes an adjournment. She is very concerned about not having the appropriate reports and character references before the courts and does wish to put before the courts material of hopeful employment and such like.

MARTINO CJDC: Very well.

ROGERS MS: She believes that she can get some very positive material in support of her plea.

MARTINO CJDC: Yes, well I am not going to preclude Ms Snook having that opportunity.

59 Bail was then granted to the appellant to appear for sentence on 28 May 2013.

The applications to adjourn and to change the pleas

60 On 28 May 2013, the appellant again appeared before Martino CJDC represented by Ms Rogers. Ms Rogers applied for leave to cease acting for the appellant. She had filed a notice of that application with a supporting affidavit. The grounds for the application were that there was a conflict in the appellant's instructions and that she was said by Ms Rogers to have been aggressive, rude and demeaning. It would appear that the issue of conflict had arisen because the appellant had changed her instructions and now wished to withdraw the pleas of guilty, re-enter pleas of not guilty and go to trial. Ms Rogers advised that a grant of legal aid had been cancelled on the basis of this change of position.

61 The appellant opposed the application by Ms Rogers for leave to cease acting. She said that she and Ms Rogers had a meeting on 16 May 2013 at which she told Ms Rogers that she had spoken to another lawyer who had suggested that she withdraw her pleas and go to trial because she was innocent. She said that Ms Rogers replied that she could not continue acting in these circumstances and sent her a letter confirming that position. She accepted that she had been impolite to Ms Rogers in a subsequent telephone call but said that had occurred in the context of receiving some bad news regarding a medical diagnosis. She said that reports and other material had not been finalised or obtained because Ms Rogers had ceased to act. The appellant denied having received a copy of the application to cease to act and the accompanying affidavit.

62 His Honour then had Ms Rogers read her affidavit out loud in court. That affidavit relevantly stated that Ms Rogers believed that Ms Snook had entered the pleas of guilty on the basis that she accepted that the elements of each offence were established, that on 16 May 2013 the appellant had said that she had sought alternative legal advice and wanted to change her pleas and that Ms Rogers told her that in those circumstances she could not continue acting on her behalf. The appellant told Ms Rogers on that day, and again on the following day, that she did not intend changing her instructions but that she did wish the sentencing hearing to be adjourned for medical reasons. The appellant subsequently provided Ms Rogers with some documentation in support of an adjournment and an application in that regard was filed on 22 May 2013. Ms Rogers stated that on 23 May 2013 she received numerous abusive SMS messages and telephone calls from the appellant which led her to believe that the appellant no longer had confidence in her ability to properly represent her. Ms Rogers advised the appellant's surety that she was not willing to represent the appellant if she continued to be rude and abusive. The appellant then made three further calls of the same nature to Ms Rogers. Ms Rogers stated that the content of the communications from the appellant suggested that she did not believe that Ms Rogers had filed an application to adjourn her sentencing and that a representation to the contrary had been made to the surety.

63 The appellant disputed many of the things claimed by Ms Rogers. She said that she had not been provided with copies of the applications and supporting affidavits as she had requested. She said that Ms Rogers had not followed up some matters regarding her medical issues, that she had requested her to do. It was apparent from these submissions that the relationship was not a workable one. Indeed, the appellant made it clear that whilst she was opposing the application for Ms Rogers to cease acting what she really wanted was an adjournment so that she could obtain alternative representation.

64 Martino CJDC concluded that it was quite clear that the professional relationship between the appellant and Ms Rogers had broken down. He noted that there was substantial agreement between them in that regard, including agreement by the appellant that she had been rude. He noted that Ms Rogers had appeared for the appellant when she entered her pleas of guilty and that it now appeared that the appellant wished to change those pleas. He said that Ms Rogers was not able to continue acting in these circumstances. His Honour granted leave for Ms Rogers to cease acting (ts 1147).

65 The appellant then made an application to change her pleas. In essence, the appellant said that she had consulted another lawyer who had advised her that he believed in her innocence and that she should seek to change her pleas. She said that the primary ground for her defence was that she had a letter of permission to sell the car. She said that she also had transcript of a recorded conversation with Mr Cunneen in which he admitted telling her to sell the car. She said that she had a copy of the recording on a computer that was present in court and that she also had transcripts of the conversations with Mr Cunneen (ts 1153). These, of course, were claims that she had made on many previous occasions.

66 The second basis for seeking to withdraw the plea was that the appellant said she had been coerced into pleading guilty. She said that a man who had formerly been a friend and had the conduct of her financial affairs had put her under pressure to plead guilty when she rejected a sexual relationship or marriage (ts 1154). She said that she was also placed under pressure by prison officers whilst on remand at Bandyup Prison. She said that she was placed in a cell with a dangerous criminal and told that she would not be moved unless she pleaded guilty (ts 1155).

67 The third ground was that the appellant said that Ms Rogers had put her under pressure by telling her that legal aid would not pay for a trial. She said that she told Ms Rogers that whilst she might be willing to accept that she did wrong, she did not accept what was stated in the prosecution witness statements. She said that she was advised that there was a high possibility of a suspended sentence and that if she pleaded guilty she could walk free (ts 1158 - 1159).

68 The appellant then referred to a report dated 12 July 2012 from Mr Brewer which referred to the appellant suffering from PTSD. She said that there was a very strong argument that PTSD led her to misunderstand the proposal that she plead guilty. She said that she wanted an adjournment to obtain an updated report to support this argument (ts 1170).

69 At the conclusion of her submissions, his Honour noted that the appellant had handed up a large number of documents and had referred to a letter from Mr Cunneen giving her permission to sell the car, but that letter was not included amongst the documents. She said that she had meant to bring it with her and would provide a copy of it to the prosecutor the next day. When asked why she did not bring a copy with her the appellant said that she had panicked and had forgotten to bring it. She said that it had been sitting on her table at home but when she went to pick it up it was not there. She said that she had had a rent inspection and it was possible that a cleaning lady had placed it into a box. She said that she had looked in the box to get some papers out for the proceedings but had forgotten to look for the letter. Despite this, she maintained that the letter existed (ts 1188 - 1189).

70 Martino CJDC then gave reasons for refusing the application to change the pleas and the application for an adjournment. His Honour set out the long history of proceedings before the District Court. He noted that Dr Febbo had expressed the opinion that with legal representation the appellant was fit for trial. In regard to the application for an adjournment his Honour noted a medical report that indicated that a gynaecological investigation was required to investigate possible treatment for cervical and uterine cancer. However his Honour considered that that was not a basis for adjourning the sentencing hearing. He said that the appellant was well capable of speaking on her own behalf, as she had done at length that day. He said that if cancer treatment was required it could be arranged either in prison, or if a non-custodial disposition was appropriate, in the community. His Honour said that he was satisfied that the appellant could present her plea in mitigation and that she had been given more than adequate time to prepare that plea. He noted that the appellant had chosen the last minute to present the various applications (ts 1199 - 1203).

71 In regard to the application to change the pleas, his Honour noted that the only witness called by the appellant in support of the application, Mr Neil Schmidt, had only known her for some 10 or 11 months and that his evidence had not advanced the matter. His Honour then said:

In relation to the many documents that she has tendered on the application to change her plea, they are in the end simply assertions on her behalf. I don't accept them. I don't accept what she has to say. It's noteworthy that, as she is aware, Ms Rogers is outside the court. And Ms Snook has obtained some material from her. I refer to the transcript at the time she entered her plea of guilty. I am satisfied that there is no basis upon which she could be permitted to change her plea in accordance with the authorities.

Particularly, one of the matters that she has referred to is the conduct of the prison. Well, as she has established today, when she entered her plea of guilty, she was represented by Ms Rogers. And Ms Rogers made submissions on her behalf to the prison, and was well able to ensure that Ms Snook was properly treated in prison, and if not could have made appropriate representations or submissions or applications (ts 1203).

72 His Honour then refused both the application for the adjournment and the application to change the plea. He then proceeded with sentencing.

73 The appellant made submissions on sentence on her own behalf.

74 While she continued to deny the offence, the appellant said that at the time she was suffering from grief in regard to her children being removed from her care. She said that she was also suffering from serious post-traumatic stress at the time. She said that she was blackmailed by a man to sell the car and probably should have gone to the police but was not thinking clearly (ts 1212 - 1213).

75 The appellant said that she was a professional engineer with 26 years' experience. She provided the court with her curriculum vitae, which set out her tertiary qualifications and membership of professional organisations. She read out a number of unsigned personal references, saying that signed copies were not available due to shortness of time. She said that she had served three years as an officer with the Royal Welsh Fusiliers and with the United Nations (ts 1214 - 1222).

76 The appellant submitted that a spent conviction order should be made as a conviction would impact on her ability to re-join the army, become a volunteer fire fighter and continue to be registered as a commercial pilot, offshore yacht master and ocean skipper. She said a conviction would also exclude her from membership of a number of business associations and recreational clubs. It would also have an impact on her ability to work (ts 1221 - 1222).

77 The appellant said that she had received a recent diagnosis of cancer and that if imprisoned she would be forced to have treatment in the public system which involved a waiting list. She said this was a concern because the cancer was very rapidly progressing. She said that it had been her intention to obtain reports to confirm the diagnosis, treatment and prognosis, but she had not had time to do so (ts 1222 - 1224).

78 The appellant then referred to a new report prepared by Mr Brewer, the psychologist who had been treating her for PTSD for the previous three and a half years. The report stated that she had no other mental health conditions apart from PTSD and that recently she had been more settled emotionally and more capable of monitoring and regulating her tone and volume of speech. She was more focused on her future, with a strong desire to re-enter the work force. Mr Brewer said that there had been a noticeable improvement in the appellant's PTSD symptomology, despite some ongoing difficulties with a neighbour. She still reported having difficulty with impaired short term memory, poor concentration, hyper arousal and social interaction (ts 1225 - 1226).

79 The State submitted that the offending required the imposition of a term of imprisonment. A suspended sentence was not opposed. The State noted that the appellant was experiencing personal pressure at the time of the offences, but that they involved premeditation and breach of trust. The car had been recovered but the $10,500 in cash had not. The prosecution case was strong and there was nothing to indicate remorse on the part of the appellant. The pleas had been entered very late and after a protracted history (ts 1205 - 1209).

80 His Honour said that on the basis of the pleas of guilty he found that the elements of the charges were proven and made no other factual findings. He noted that the pleas of guilty were entered on the last business day before the trial was due to commence. In these circumstances the pleas were very late. He assessed the reduction in sentence by reason of the pleas of guilty as being worth only 2.5% pursuant to s 9AA Sentencing Act 1995 (WA) (ts 1229 - 1230).

81 His Honour said that the appellant had shown no remorse. Whilst she had referred to remorse in her submissions, it was apparent that this was a reference only to being sorry for her predicament and not remorse for the offending behaviour (ts 1230).

82 However, his Honour said that there were some matters in mitigation in addition to the plea of guilty. He accepted that at the time of the offending the appellant was under a great deal of stress. Her only record of offending related to traffic offences. The stealing and fraud offences were out of character. At the time she was also suffering some mental health problems associated with an anxiety or depressive syndrome, as referred to by Dr Febbo when he examined the appellant for the purpose of the fitness to plead assessment (ts 1230).

83 His Honour noted that the appellant had spent a total of 144 days in custody. This was largely as a result of the appellant's failure to attend trial in February 2012, however it was a matter that needed to be taken into account. He said that the time in prison had provided some measure of punishment and acted as both a personal and general deterrent (ts 1230 - 1231).

84 His Honour said that the offending was serious and that personal and general deterrence were important factors. There was a need to ensure that thefts and frauds of this nature were discouraged. His Honour concluded that the only appropriate disposition was a term of imprisonment but, having regard to the matters in the appellant's favour, in particular her prior good character and personal difficulties at the time, it was appropriate to suspend the terms (ts 1231).

85 A sentence of 15 months' imprisonment for each offence would have been imposed but for the fact that the appellant had spent approximately four months and three weeks in custody. For this reason, his Honour reduced the sentences by 5 months on each count. He imposed a sentence of 10 months on each count and ordered that they be served concurrently. He then ordered that the sentences be suspended for 12 months. He made a compensation order in favour of Mr Hurlbatt in the sum of $10,500.

86 His Honour referred to the application for a spent conviction order and said:

I have considered whether to make a spent conviction order. A court is not to make a spent conviction order unless it considers the offender is unlikely to commit such an offence again and, having regard to, one the fact that the offence is trivial, or 2 the previous good character of the offender, it considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

I do consider that you are unlikely to commit such an offence again and I do find that you are a person of previous good character, so the jurisdiction to make a spent conviction order does exist. Now, it's clear that the offence is not trivial but that is not a requirement of the jurisdiction to make a spent conviction order.

What is required is that a finding that the offender is unlikely to commit such an offence again and either a finding that the offence is trivial of the previous good character of the offender leads to the conclusion that the offender should be relieved of the adverse effects of the conviction.

So because I consider you are unlikely to commit such an offence again and your previous good character, I do have jurisdiction to grant the spent conviction order, however, as cases such as Tognini [2000] WASCA 31; 22 WAR 291 establish, a spent conviction order is an exceptional character and the ordinary rule is that a conviction is a matter of record for which the consequences that may entail into the future is to be recorded.

I have borne in mind that there will be difficulties with you in your employment, in your membership of professional and social bodies if a spent conviction order is not made. I have nevertheless decided that, in all the circumstances, it is appropriate in this case for the fact of your offending in each case to be a matter of public record and that a spent conviction order is not warranted although the jurisdiction to grant it does exist.

I therefore do not make a spent conviction order (ts 1232).

87 The grounds of appeal contained in the appellant's case for each appeal are in identical terms. The grounds are not clearly worded. They make unsubstantiated assertions of fact, rather than being confined to alleging errors of fact or law.

88 The essential contentions raised in the grounds are as follows:

1. That Martino CJDC erred by not adjourning the proceedings on 28 May 2013;
2. That Martino CJDC erred by not permitting the appellant to change her pleas; and
3. That the sentence imposed was manifestly excessive.

89 The appellant submits that by refusing an adjournment the sentencing judge denied her an opportunity to obtain evidence of her innocence on the charges. She also submits that it was unfair to proceed in circumstances where her solicitor had just withdrawn, she was unprepared to represent herself and was not fit to do so because of her PTSD.

90 The appellant submits that she should have been allowed to change her plea because 'there was a triable case and evidence of innocence'. This is a reference to the repeated assertion that the appellant had been given a letter of permission to sell the car and that this had been confirmed in a subsequent recorded conversation with Mr Cunneen.

91 The appellant submits that the sentence is excessive because it failed to take into account the mitigating effect of the appellant's mental impairment. This is a reference to the PTSD that the appellant has been diagnosed with.

92 Whether an adjournment should be granted is a matter for the discretion of the court to which the application is made. Where it is suggested that there has been an error in the making of a discretionary decision it is not enough that an appeal court may have made a different decision; it must be shown that some error has occurred in the exercise of the discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon CJ, Evatt and McTiernan JJ). This may include acting on a wrong principle, taking into account an irrelevant consideration or failing to take into account a relevant consideration. In some cases it may not be apparent how a decision has been reached but the result is so plainly unjust that it can be inferred that an error in the exercise of discretion must have occurred.

93 Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this type unless there is strong reason for believing that an injustice has resulted: Myers v Myers [1969] WAR 19, 21. See also Lewis v The State of Western Australia [No 2] [2008] WASCA 155.

94 In addition to the question of injustice to the parties it is also necessary for a judicial officer to take into account the public interest in the orderly and expeditious disposition of cases in busy courts. There is a strong public interest in the timely disposition of all criminal cases. The effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing need to be taken into account. However, those considerations will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused person of the opportunity to present a case which has a reasonable prospect of success: The State of Western Australia v Silich [2011] WASCA 135 [37] (Martin CJ).

95 It is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence and an adjournment should be granted if it is necessary to enable the accused person to properly present that defence. However, in considering an application for an adjournment to allow a defence witness to be brought from elsewhere it is proper to reject such an application if the court reaches the conclusion upon reasonable grounds that such a witness would be unlikely to give evidence tending to exculpate the accused: Leary v The Queen [1975] WAR 133, 138.

96 In the present case the appellant had a long history of engaging and then dismissing lawyers. She had decided to change her instructions and thereby made it impossible for her current lawyer to continue to act for her. It had long been clear that legal aid would not be granted for a trial. There was no realistic prospect that a further delay would result in the appellant obtaining legal representation to pursue applications to change her pleas and, if granted, defend her in a trial.

97 The appellant had two months, between entering pleas of guilty on 22 March 2013 and the sentencing hearing on 28 May 2013, to prepare her applications to adjourn and to change her pleas and to prepare sentencing submissions. It was not until 23 May 2013 that the relationship with Ms Rogers completely broke down. In any event, the appellant had sought alternative advice sometime prior to 16 May 2013 and must have known by that time that if she wanted to pursue an application to change her pleas she would have to do so herself.

98 The arguments raised by the appellant for seeking an adjournment were that she wanted to change her pleas, wanted to obtain alternate legal representation and wanted further time to obtain material relevant to sentencing. As to a change of plea, there is nothing to suggest that the application would have had any better prospect of success if an adjournment had been granted. As to the wish to obtain a different lawyer, this was a problem entirely of the appellant's making and not one that was likely to be resolved by further delay. As to the need for more preparation time, the sentencing judge permitted the appellant to submit unsigned references and a new report from Mr Brewer. Her submissions on sentence were long and detailed. It is not apparent that a delay would have resulted in any material information being added to that already before the court.

99 The appellant claims that due to her PTSD she was unable to properly address the court at the sentencing hearing. The transcript of that hearing does not bear that out. As I have noted she spoke at great length and was listened to by the sentencing judge with evident care and admirable patience.

100 There is no basis for concluding that the appellant was prejudiced by the refusal of an adjournment. On the other hand, the proceedings had, by 28 May 2013, been on foot for nearly four years. The matter had been listed for trial on three occasions. The appellant had brought a plethora of unmeritorious applications that had only served to delay resolution of the matter. The prejudice to the prosecution and its witnesses of further unnecessary delay was self-evident. The public interest in the expeditious delivery of justice had already been compromised. Over the four years that proceedings had continued the appellant had been afforded more than a fair opportunity to present every argument that she wished to raise in her defence. Very considerable leniency and indulgence had been extended to the appellant having regard to her (mostly) unrepresented state and personal difficulties.

101 It was plainly open to Martino CJDC to come to the conclusion that it was inappropriate to exercise his discretion to grant an adjournment. No error has been demonstrated. The grounds directed to the adjournment have no reasonable prospect of success.

102 An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 Dawson J. There are three well recognised grounds for allowing a change of plea:

(1) where the applicant did not understand the charge or did not intend to plead guilty;

(2) where on the admitted facts the applicant could not in law be guilty of the offence; and

(3) where the plea of guilty has been obtained by inducement, fraud or intimidation.

See Borsa v The Queen [2003] WASCA 254 and Webster v The Queen [2015] WASCA 20.

103 These are not however the only circumstances that might justify a change of plea and such a change should be permitted by a court whenever not to do so would result in a miscarriage of justice. Where an application is made to change a plea, the onus is on the applicant to show why he or she should be permitted to do so: Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea.

104 Attempts to change a plea are approached by the courts with caution bordering on circumspection: Liberti v The Queen (1991) 55 A Crim R 120. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice: Pilkington v The Queen [1955] TASStRp 11; [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.

105 A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment. Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty: Meissner v The Queen. The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure.

106 An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [157] Dawson J, see also Wilhelm v The State of Western Australia [2013] WASCA 188, Mazza JA [51].

107 If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.

108 The appellant's pleas of guilty to both charges on 22 March 2013 were unequivocal. The appellant's lawyer confirmed, in her presence, that she understood the charges, admitted the elements and was aware of the consequences of entering the pleas. The fact that the proceedings were then adjourned to enable the appellant to obtain an independent report from her psychologist further confirms that she understood that she was pleading guilty and intended to do so.

109 It seems from the appellant's submissions to the sentencing judge that the catalyst for her wish to change her plea was a subsequent discussion with another lawyer. Although the appellant claimed that she was pressured and coerced to enter pleas of guilty, there is no evidence to support these assertions. Indeed, the appellant told Dr Febbo in March 2013 that she was intending to plead guilty if she could not obtain evidence to support her defence.

110 As regards the claim by the appellant that she was innocent of the charges because she had been given permission to sell the car, this is a claim that has never been substantiated. Despite being given numerous opportunities to produce any relevant evidence in this regard, and indeed being ordered to produce it on one occasion, the appellant has failed to do so. She has also failed to do so on this appeal. In any event, an assertion that an appellant had an arguable defence to the charges does not provide a basis for suggesting that there has been a miscarriage of justice. There is no merit to a claim that the appellant could not in law have been guilty of the offence.

111 As to the suggestion that the appellant did not understand the pleas of guilty due to the effects of PTSD, this was only advanced by the appellant as a possibility at the hearing on 28 May 2013. There was no evidence in support of that suggestion. She had an opportunity to consult with her treating psychologist after entering her guilty pleas and put forward an updated report from him. There was nothing in that report that supported the conclusion that she was unable to understand her pleas. In any event, the report of Dr Febbo had confirmed her fitness to be tried on 21 March 2013. This report had stated that the appellant understood the meaning and effect of pleas of not guilty and guilty.

112 In my view there was no basis for setting aside the pleas of guilty. The sentencing judge was correct to refuse that application. Nor is there anything now to indicate that the appellant's convictions are a miscarriage of justice. The grounds suggesting to the contrary are without merit and have no reasonable prospect of success.

113 The appellant does not assert that the sentences imposed were outside the range customarily imposed for offences of this nature. Rather, she says that the sentences were in error because they failed to take into account her mental health.

114 The learned sentencing judge made specific reference to the appellant's mental health and to her stress and anxiety at the time of the offences. Mental health can be relevant to sentence in a number of ways: Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; Gok v The Queen [2010] WASCA 185.

115 In the present case the offences were carried out with deliberation and planning. They involved significant dishonesty and the abuse of the charitable assistance offered by Mr Cunneen. There was no evidence of remorse; to the contrary the appellant had stubbornly maintained her innocence over many years in the face of a strong prosecution case. Deterrence, both personal and general, were important considerations. The appellant's PTSD was a relevant personal factor, but it had to be considered along with all other relevant factors. The sentence imposed is not inconsistent with account being taken of the PTSD. The sentence is not manifestly excessive and the ground which asserts to the contrary has no reasonable prospect of success.

116 The sentencing judge's refusal of a spent conviction was also soundly based. His Honour recognised that he had the discretion to grant such an order but did not consider it appropriate to do so. He took into account the relevant considerations and concluded that, notwithstanding the appellant's prior good character and the unlikelihood that she would commit other offences of the same nature, the circumstances of the offence were too serious to justify a spent conviction. That conclusion was plainly open.

117 In my view none of the grounds of appeal have a reasonable prospect of success and leave in respect of them should be refused. I would make the following orders:

(1) Extension of time to appeal on CACR 196 of 2013 be granted.