Criminal law and sentencing - Appeal against sentence - Assistance to prosecuting authorities provided after sentencing without having expressed willingness to do so at time of sentencing - Whether any ground to interfere with sentence

Colwell v The State of Western Australia [No 2] [2012] WASCA 196

F v The Queen [2005] WASCA 135

JKL v The State of Western Australia [2012] WASCA 215

LWD v The State of Western Australia [2017] WASCA 164

MacCauley v The State of Western Australia [No 2] [2017] WASCA 65

1. The appellant pleaded guilty to three offences. He was sentenced to 7 years' imprisonment on count 1, attempting to possess methylamphetamine with intent to sell or supply. On count 2, attempting to wilfully destroy evidence, he was sentenced to 6 months' immediate imprisonment, to be served concurrently with count 1. On count 3, possession of methylamphetamine with intent to sell or supply, he was sentenced to 1 year 6 months' immediate imprisonment, also to be served concurrently.
2. The appellant's sole ground of appeal challenges the total effective sentence on the basis of his post-sentencing cooperation in offering to give, and then giving, evidence against his co-offender.
3. For the reasons that follow, the ground of appeal has no merit. The appellant's applications for leave to appeal and for leave to adduce additional evidence must be refused, and the appeal dismissed.

1. The sentencing judge referred to the following uncontroversial facts of the appellant's offending.
2. On 7 May 2016, the appellant met with his co-offender, Ms G, who provided him with a sample of methylamphetamine in order for him to appraise it before placing a larger order for methylamphetamine.[1]
3. Between that day and 9 May 2016, the appellant negotiated with Ms G in relation to drug amounts and prices. A code was used in an unsuccessful attempt to avoid police detection. Ultimately, the appellant placed an order for the purchase of 0.5 kg of methylamphetamine for $67,000.
4. On 10 May 2016, Ms G arranged for her supplier to provide two 0.5 kg packages of methylamphetamine and then contacted the appellant to confirm a time and place to meet. However, that meeting did not eventuate because the appellant needed to reschedule to the following morning.[2]
5. On 11 May 2016, Ms G arranged to meet the appellant at a car park. In advance of the meeting, the appellant's co-accused, Mr N, arranged to collect cash from an associate to purchase the drugs. At about 10:50 am, the appellant, Ms G and Mr N attended the car park. The supplier attended and provided a quantity of white crystal material to both Ms G and the appellant, which was later identified as sucrose. This was the subject of count 1.[3]
6. The appellant was then arrested by police. While police were apprehending him, the appellant threw a freezer bag containing the white crystal material onto the road in the car park, causing the bag to break and the crystal material to spill. That attempt to destroy evidence was the subject of count 2.[4]
7. The total weight of crystal material recovered and seized from the scene was 483.36 g. That comprised one amount of 455 g, 1.16 g vacuumed up from the car park, 11.3 g scattered throughout the appellant's car and 15.9 g in the ripped plastic bag found in the driver's seat of the appellant's car. In a subsequent interview, the appellant admitted that he believed the substance he threw on the ground was methylamphetamine.[5]
8. After his arrest, the appellant was conveyed to his home where police undertook a search. They seized 15.64 g of methylamphetamine in four separate clipseal bags from a shelf in the master bedroom. This was the subject of count 3.[6]

1. The sentencing judge outlined the appellant's personal circumstances as follows.
2. The appellant was 43 at the time of the offending and 44 at the time of sentencing.[7]
3. He was born in New South Wales and lived there for a period, completing schooling to year 10. He completed an apprenticeship in carpentry after leaving school and had mostly been self-employed, initially in that field but later in a number of areas. Through his history of self-employment, he had demonstrated a capacity to establish and run businesses employing other people.[8]
4. Since moving to Western Australia, the appellant had had a bricklaying business. For a time, the business was successful and employed a number of people. About four years prior to sentencing, the business suffered due to a downturn in the building industry that reduced the amount of work and caused delays in payment. From that point, the appellant's life began to unravel. He went from a law-abiding business owner to a drug dealer. Through his then partner, who was a methylamphetamine user, he started using and became addicted. He was using 6 to 7 g a week at some point. His relationship with that partner ended about the time he committed count 1.[9]
5. Since March 2015, the appellant had been in a relationship with a supportive partner, with whom he had been living since May 2015. The daughter of the appellant's partner was diagnosed with leukaemia in September 2016 and had tragically passed away, earlier in 2017.[10]
6. At the time of sentencing, the appellant and his partner were also expecting their first child together. His partner was a foreign national on a visa and was soon to be deported. This meant that, if a term of imprisonment was imposed, he would be unable to see his child unless his partner obtained a further visa to visit him.[11]
7. Police had not found any significant wealth of the appellant that could be attributed to drug dealing. They found two motorbikes which were sold for a total of $15,000.[12]
8. The appellant has a very limited criminal history, detailed below at [22].

1. The sentencing judge described the appellant's guilty plea as being not at the first reasonable opportunity but at a relatively early stage of proceeding (the second committal mention). The State case against the appellant was strong, but his plea avoided the need for a trial. The sentencing judge found that the appellant's plea demonstrated contrition and an acceptance of responsibility and indicated a willingness to facilitate the course of justice. His Honour treated it as reflecting remorse. He discounted the head sentence for each offence, pursuant to s 9AA of the Sentencing Act 1995 (WA), by 20%.[13]
2. The sentencing judge found that, other than his plea, the appellant had not demonstrated any real remorse for his offending. His Honour referred to a note written by the appellant, finding that the appellant was sorrier for what had happened to him, and the situation he found himself in, than for the effect of drugs on society and the effect the drugs he thought he was buying would have had on those who used them.[14]
3. The sentencing judge also identified the appellant's very limited criminal history, and the fact that he had never before been to gaol, as mitigating.[15] The appellant's criminal history comprised two relatively minor October 2015 drug offences (possession of methylamphetamine and possession of drug paraphernalia) for which he received fines of $600 and $250, respectively, and two spent motor vehicle convictions committed when he was a teenager.[16]
4. The sentencing judge took into account a character reference provided by the appellant's current partner. His Honour observed that it spoke positively of the appellant, describing him as a hardworking, responsible and caring person. The character reference also stated that the appellant had taken several jobs to earn money to pay for treatment for his partner's daughter and had stopped his partner's attempted suicide after her daughter passed away.[17]
5. However, the sentencing judge did not accept that potential future difficulties in the appellant seeing his then unborn child mitigated his offending. His Honour saw no reason why his partner could not obtain a tourist visa, such that he would be able to see his child while in prison.[18]

1. The sentencing judge identified the following aggravating factors in relation to count 1:
   1. The appellant made an arrangement to acquire a very significant amount of drugs: 0.5 kg of methylamphetamine for $67,000. The appellant appeared to have access to a significant sum of money, with which to purchase drugs. His Honour found that the appellant was clearly a significant drug dealer, operating at mid-level or even higher in the drug world and who was certainly not selling at a street level. Had the crystal material been methylamphetamine, the appellant would have been able to sell it to other drug dealers at a lower level.[19]
   2. The appellant was a commercial drug dealer seeking to make significant money. The sentencing judge found that he stood to make a profit of between $40,000 to $118,000. The sentencing judge did not accept that any significant proportion of the 0.5 kg the subject of count 1 would have been for the appellant's own use.[20]
2. In the sentencing judge's view, there were no particular aggravating factors in relation to counts 2 or 3.[21] The appellant's attempt to destroy evidence was spontaneous and ineffective.[22]

1. The sentencing judge referred to the important sentencing considerations, in drug-related offending, of personal and general deterrence and the fact that the appellant's personal circumstances carried significantly less weight.[23]
2. In relation to count 1, his Honour observed that there was no material difference in culpability between an attempt and a completed offence involving drug dealing in relation to such a significant amount of drugs.[24]
3. The sentencing judge also considered that, although it was opportunistic and spontaneous, the appellant's offending on count 2 was very serious, warranting a term of imprisonment.[25]
4. His Honour concluded that, as conceded by counsel for the appellant, given the seriousness of the appellant's offending, the only appropriate sentence on each count was a term of immediate imprisonment.[26]
5. The sentencing judge imposed the sentences set out at [1] above, backdated to 30 March 2017, and made the appellant eligible[27]or parole.27

1. The appellant advances a single ground of appeal in the following terms:

The Appellant seeks leave to appeal against sentence on one ground. The appellant alleges that the total effective sentence infringed the totality principle having regard to his future cooperation with the police at the Trial of the co-[offender].

The appellant's application to adduce additional evidence

1. The appellant seeks leave to adduce additional evidence concerning his cooperation with authorities, subsequent to sentencing. This additional evidence comprises his affidavit which attaches his witness statement and transcript of oral evidence provided at Ms G's trial. Nothing is said in his affidavit concerning when his offer of assistance was first made. There is no evidence or suggestion that any offer was made at any time before or during his sentencing.
2. The appellant's witness statement includes evidence that:
   1. Ms G told him she could sell him methylamphetamine in kilogram amounts.[28]
   2. Before his arrest, he purchased two 500 g amounts of methylamphetamine from Ms G on two separate occasions in late 2015.[29]
   3. About two or three weeks before his arrest, Ms G text messaged him asking if he wanted to buy some drugs.[30]
   4. In text communications, Ms G's code for drugs was talking about girls for massage with the hour referring to the amount of drugs, eg, 1 hour = 1 kilogram.[31]
   5. He facilitated two of his friends purchasing drugs from Ms G.[32]
   6. Ms G participated in events relating to his offending in substantially the way outlined above.[33]
3. The appellant gave substantially similar evidence at Ms G's trial.

The respondent's application to adduce additional evidence

1. The respondent seeks leave to adduce additional evidence in response. This evidence consists of an affidavit of the prosecutor, Ms Bowman, who had carriage of the prosecution of the appellant, Ms G and Mr N. It seeks to explain the circumstances in which the appellant offered his subsequent cooperation, including that:
   1. At no stage prior to his sentencing did the appellant make an offer to the State to give evidence against Ms G or Mr N.[34]
   2. The appellant first indicated a willingness to testify against Ms G and Mr N approximately a week after he was sentenced.[35]
   3. The evidence in the appellant's witness statement was only relevant to the case against Ms G and not to the case against Mr N.[36]
   4. Ms Bowman formed the view that the appellant's witness statement did not provide material assistance in the case against Ms G in proving anything that the State could not otherwise prove.[37]
2. Ms Bowman advised the appellant's counsel that he could not be resentenced on the basis of his cooperation.[38] Her affidavit also attaches various email communications discussing this issue, between counsel for the appellant, counsel for the Director of Public Prosecutions of Western Australia and members of that Office.

1. The appellant submits that the cooperation given by the appellant warrants a discount, as it was useful to law enforcement authorities. Further, the appellant submits that the court can take into account post-sentencing events, being the evidence given by the appellant at Ms G's trial. In this respect, the appellant relies on the decision of this court in F v The Queen.[39]

1. The sole ground of appeal is fundamentally flawed, as it relies on events occurring after the completion of the sentencing process. An appeal to this court is not an opportunity to revisit the question of the appropriate sentence in light of all material now available. The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice in the sentencing. Only if there was error or a miscarriage of justice does this court proceed to the second stage of re-exercising the sentencing discretion and deciding whether a different sentence should have been imposed. Consequently, with limited exceptions referred to below, it is only at the second stage - once error or a miscarriage of justice is demonstrated - that this court takes account of post-sentencing events in exercising afresh the sentencing discretion and deciding whether a different sentence should have been imposed. Because there is no ground of appeal asserting error or a miscarriage of justice in the sentence imposed as at the time it was imposed, no occasion arises to receive information concerning events post-sentencing.
2. While, as a general rule, an appeal court decides an appeal on the evidence and material before the court below,[40] this court has a broad discretion to admit other evidence on appeal under s 40(1)(e) of the Criminal Appeals Act 2004 (WA). In exercising the power to admit additional evidence, ordinarily at least, a distinction is drawn between matters which existed at the time of sentencing, but were not known, and matters which have come into existence since the time of the sentence. The reasons for this are grounded in the role of an appellate court. The position was explained by Newnes JA (with whom Pullin and Mazza JJA agreed) in Colwell v The State of Western Australia [No 2], as follows:[41]

[A]n appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court: R v Munday [1981] 2 NSWLR 177, 178; R v Vachalec [1981] 1 NSWLR 351, 353 - 354; R v Babic [1998] 2 VR 79, 80 - 81; El-Jaklh v The Queen [2011] NSWCCA 236 [26] - [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: Vachalec (353 - 354); Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 [45].

Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time: R v Nguyen [2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police [2010] SASC 115 [68] - [69].

1. This passage has been adopted and applied in many subsequent decisions of this court. See, for example, MacCauley v The State of Western Australia [No 2];[42] LWD v The State of Western Australia.[43]
2. In JKL v The State of Western Australia,[44] this court upheld grounds of appeal against sentence, finding that some of the sentences imposed were manifestly excessive. Having done so, the court admitted additional evidence of the appellant's cooperation after sentence, in re-exercising the sentencing discretion, pursuant to its power under s 41(4) of the Criminal Appeals Act. In that case, the appellant's ground 4 had alleged that the appellant's sentence ought to be revisited in light of the fresh evidence available of his preparedness to provide a written statement and give evidence against his co-accused. As other grounds were upheld, it was unnecessary to determine ground 4. Nevertheless, Mazza JA made clear that he would not have upheld ground 4. His reasons for doing so, set out below, seem to us to be equally applicable to the present case, and reflect our reasons for rejecting the appellant's ground of appeal:[45]

This is not a case where insufficient or inaccurate information was given to the primary judge about the appellant's cooperation. Nor can it be said that there was a failure to appreciate the facts which were relevant to sentence. At the time of sentencing no cooperation had been given and his counsel conceded that there was no material upon which the primary judge could discount the sentence. The appellant could have given cooperation prior to being sentenced but did not do so. The cooperation that he gave occurred well after he filed his notice of appeal. Any question of a reduction would have been a matter for the Executive to decide: see Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] - [30].

1. Nothing in the decision of this court in F v The Queen assists the appellant in this case. In F v The Queen, the sentencing judge had before him a letter from the Australian Federal Police indicating that the appellant had signed an undertaking to testify against someone. This court held that the sentencing judge's discretion miscarried in failing to give any reduction. Having so concluded, McLure JA said: 'in which case this [c]ourt may exercise its own discretion[.] As a result, this [c]ourt can take into account post-sentencing events'.[46] The approach of the court in F v The Queen makes clear that post-sentencing events were taken into account only at the second stage, namely the re-exercise of discretion, after appellable error had been demonstrated. In this case, no error or miscarriage of justice is shown and so the second stage is not reached.
2. For these reasons, ground 1 has no reasonable prospects of succeeding and leave to appeal must be refused.

1. For the above reasons, we would make the following orders:
   1. The application for leave to adduce additional evidence be refused.
   2. Leave to appeal on ground 1 be refused.
   3. The appeal be dismissed.

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

[28] Witness statement of the appellant, 2.

[29] Witness statement of the appellant, 3.

[30] Witness statement of the appellant, 4.

[31] Witness statement of the appellant, 4.

[32] Witness statement of the appellant, 4 - 5.

[33] Witness statement of the appellant, 5 - 12.

[34] Affidavit of Sharyn Janine Bowman [14].

[35] Affidavit of Sharyn Janine Bowman [14] - [15].

[36] Affidavit of Sharyn Janine Bowman [19].

[37] Affidavit of Sharyn Janine Bowman [23].

[38] Affidavit of Sharyn Janine Bowman [16].

[39] Appellant's submissions [1] citing F v The Queen [2005] WASCA 135.

[40] Criminal Appeals Act 2004 (WA), s 39(1).

[41] Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [29] - [30].

[42] MacCauley v The State of Western Australia [No 2] [2017] WASCA 65 [46].

[43] LWD v The State of Western Australia [2017] WASCA 164 [84].

[44] JKL v The State of Western Australia [2012] WASCA 215.

[45] JKL v The State of Western Australia [173].

[46] F v The Queen [17] - [18].