DIMER -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 111 (10 July 2020)

The facts and circumstances of the offending as alleged by the State

1. At the sentencing hearing on 2 May 2019, the prosecutor read aloud the material facts alleged by the State as follows.
2. Between 2.30 am and 2.50 am on 20 January 2018, the appellant entered the Manning Bowling Club through a side door. The appellant did not have permission to enter the bowling club and was not a member. Once inside, the appellant entered a locker room and rummaged through several bags. She then entered the boardroom where she located a box labelled 'footy tips' and a first aid box. The appellant opened the first aid box and attempted to open the footy tips box. The appellant was disturbed by Mr Koroma who worked as a cleaner at the bowling club. The appellant fled on foot. Mr Koroma followed her.
3. The appellant picked up a house brick and hid in the front yard of residential premises. She then emerged and confronted Mr Koroma by holding the brick and threatening to throw it at him. The appellant threw the brick to the side and continued to run along a residential street.
4. The appellant ran towards a house at 47A Griffin Crescent, Manning. At the time, the co‑accused Mr O'Dea was in his bedroom with his partner. Mr O'Dea awoke to the sound of screaming. Mr O'Dea then woke the co‑accused, Mr Webb, who was asleep on a couch and told him to come outside. Mr O'Dea armed himself with a weapon similar to a hockey stick.
5. Mr O'Dea and Mr Webb saw Mr Koroma and the appellant in the driveway of the house. Mr O'Dea and Mr Webb tackled Mr Koroma. They struck him and caused him to fall to the ground. When Mr Koroma was on the ground Mr O'Dea and Mr Webb kicked him to the body and the head. Mr Koroma sat up. Mr O'Dea kicked him to the face and caused Mr Koroma to fall down.
6. The appellant sat nearby while Mr O'Dea and Mr Webb assaulted Mr Koroma.
7. When Mr Koroma was lying on the ground Mr O'Dea raised the weapon (similar to a hockey stick) and struck Mr Koroma to the head. Mr O'Dea then dropped the weapon and struck Mr Koroma at least 10 times to the face and head with a clenched fist.
8. Mr Webb kicked Mr Koroma to the head twice before approaching the appellant who was sitting near the letterbox.
9. Mr O'Dea dragged Mr Koroma from the driveway onto the grass verge near the street kerb. Mr O'Dea pushed Mr Koroma down and punched him twice while Mr Koroma was laying on his back. Mr Webb held Mr Koroma on the ground. Mr O'Dea raised the weapon and threatened to strike Mr Koroma again.
10. The appellant began to walk along the street. However, Mr O'Dea and another man told her to return. The appellant approached Mr Koroma who was being held by Mr Webb. The appellant reached over Mr Koroma's body, grabbed at his torso and waist, and rummaged through his pockets. The appellant then grabbed a lanyard from around Mr Koroma's neck and attempted to drag him along the road. Mr Koroma's body moved as a result of the force with which the appellant pulled the lanyard.
11. When Mr Koroma recovered into a sitting position Mr Webb grabbed him from behind. Mr Webb dragged Mr Koroma onto a neighbouring driveway. Mr Koroma's head struck the ground.
12. Mr O'Dea and Mr Webb circled Mr Koroma while he was sitting on the ground. He attempted to stand. Mr O'Dea then struck Mr Koroma on the right ankle with the weapon. Mr Koroma fell to the ground in the middle of the road. Mr Koroma got up and took several steps before falling again. He eventually got up and walked away. Mr O'Dea and Mr Webb followed him along the street.
13. Mr Koroma was taken to hospital. He was treated for a traumatic brain injury with subarachnoid haemorrhage, left frontoparietal extradural haematoma and contusion. Also, he was treated for skull and facial bone fractures including a nasal bone fracture and a displaced fracture to the left side of his jaw. Further, he was treated for a fractured right ankle.
14. Mr Koroma required comprehensive multi‑disciplinary inpatient rehabilitation including physiotherapy, occupational therapy, speech pathology, rehabilitation nursing and medical oversight. He has residual cognitive and speech related deficits which preclude him from returning to work or driving. Mr Koroma also required ongoing therapeutic intervention. In October 2018 he was admitted to a residential rehabilitation facility for people with an acquired brain injury.
15. At the time of the offending, Mr Koroma was aged 33 years, Mr O'Dea was aged 44, Mr Webb was aged 39 and the appellant was aged 18.
16. At the sentencing hearing on 2 May 2019, defence counsel informed the sentencing judge that the material facts, as alleged by the State, were admitted, apart from 'some minor matters' referred to in defence counsel's written submissions dated 18 April 2019. Those matters were as follows:

(a) The appellant instructed defence counsel that she did not drag Mr Koroma along the road. The appellant acknowledged, however, that CCTV footage did show her 'dragging, relatively briefly, [Mr Koroma] at one stage'. Defence counsel said in the written submissions that the point was not 'pressed' by the appellant because the point was 'a distinction of no material moment to sentence'.

(b) The appellant accepted that she grabbed a lanyard from around Mr Koroma's neck and 'momentarily dragged him a short distance along the road'. However, the appellant did not accept that she pulled the lanyard 'with such force that [Mr Koroma] moved'. Defence counsel said he 'agitate[d]' that a contrary finding 'would not materially [affect] sentence'.

The prosecutor's submissions in relation to the sentencing options

1. At the sentencing hearing, and in an email sent to the sentencing judge before the sentencing hearing, the prosecutor submitted that having regard to:

(a) the fact that the appellant did not know Mr O'Dea or Mr Webb;

(d) the 10 months the appellant had already been in custody on remand,

a term of immediate imprisonment was not the only appropriate sentencing option.[1]

1. Her Honour responded to the prosecutor's submission by enquiring whether the prosecutor had discussed the submission 'with a consultant or a senior State prosecutor'. The prosecutor told her Honour that she had not. Her Honour then said that she rejected the submission that a term of immediate imprisonment was not the only appropriate sentencing option.[2]

1. The sentencing judge referred to the material facts alleged by the State and incorporated those facts into her sentencing remarks.
2. Her Honour noted that while Mr O'Dea and Mr Webb assaulted Mr Koroma the appellant did nothing to stop the assault or to explain why she was running from Mr Koroma.[3]
3. The sentencing judge found that when Mr Koroma was being held by Mr Webb, the appellant 'reached over [Mr Koroma's] body, grabbing his torso and waist, and rummaged through his pockets'. The appellant 'then grabbed a lanyard which was around [Mr Koroma's] neck and tried to drag him along the road.[4]
4. The CCTV footage showed '[Mr Koroma's] body being moved at this point as a result of [the appellant's] actions. Her Honour said that she was satisfied the appellant 'did this act despite [her] denying that [she] did so'.[5]
5. The sentencing judge rejected the appellant's assertion in her electronically recorded interview with police that she told Mr O'Dea and Mr Webb to stop hitting Mr Koroma and that she did not see any weapons being used by them.[6]
6. Her Honour made the following findings:

(a) the appellant was 'caught red‑handed in the process of attempting to get into the footy tipping box at the bowling box';

(c) Mr Koroma was doing 'what was his civic duty in trying to stop you as you ran away';

(d) the appellant threatened Mr Koroma with a brick to deter him from following her;

(e) when Mr Koroma was not deterred the appellant 'cried wolf';

(f) the appellant 'ran down the street crying for help'; and

(g) the appellant 'said nothing to stop what was a sustained and brutal attack with devastating consequences on [Mr Koroma]'.[7]

Her Honour's finding that the appellant 'cried wolf' appears to have been made on the basis of evidence in the prosecution brief. One State witness asserted that, as the appellant ran down the street, she said 'help, I'm getting attacked'. Another witness asserted that the appellant screamed 'help, help'. In her electronically recorded interview with the police, the appellant admitted that she had shouted for help.

1. The sentencing judge then said that she did not consider that the appellant 'played a lesser role' than Mr O'Dea and Mr Webb 'in the offence of acts intended to cause grievous bodily harm'.[8] Her Honour elaborated:

If it were not for your actions the offence would not have occurred, and you did nothing to stop it being continued. You went rifling through the complainant's pockets and dragged him by the lanyard which was around his neck when he was beaten and vulnerable and prone on the ground.

I view this as a serious example of this type of offence, and I can indicate to you right now that I do not accept the State's submission that anything other than a term of imprisonment to be immediately served is the appropriate sentencing disposition. I am bewildered at how the State can make that submission, quite frankly.

The only appropriate disposition is a sentence of immediate imprisonment. The question for my determination is the appropriate length of such term.[9]

1. Her Honour noted the injuries suffered by Mr Koroma and the contents of his victim impact statement.
2. The sentencing judge referred to the appellant's personal circumstances. The appellant was aged 18 years at the time of the offending and was aged 19 when sentenced. She had a deprived and dysfunctional upbringing. Alcohol and drug abuse was prevalent in her family. Her parents were violent towards her. The appellant had unresolved grief associated with her grandmother's death in 2013. The appellant had been in two significant personal relationships. The partners were addicted to drugs and were abusive towards her. The appellant has a daughter who was aged two years at the time of sentencing. At all material times the daughter has been in the care of the Department of Community Protection. The appellant completed year 10 at school but has no employment history. She has abused drugs. However, by the time of sentencing the appellant had expressed a willingness to participate in substance abuse counselling.
3. Her Honour expressed the view that the appellant's risk of re‑offending would remain elevated until she addressed unresolved issues relating to her childhood trauma, mental health (including depression), unresolved grief associated with the death of her grandmother, drug abuse, poor emotional management and relationship issues, anger management, lack of effective coping and problem solving skills, unemployment and limited positive leisure activities.
4. The appellant had a minor criminal record. Her only two convictions as an adult were for breaching bail and for criminal damage. Fines were imposed for those convictions. She did, however, have an extensive criminal record as a juvenile.
5. The sentencing judge said that the appellant had shown 'no real insight or empathy' in relation to the impact of her offending on Mr Koroma.
6. Her Honour allowed the appellant a discount of 20% in respect of counts 1 and 2 and a discount of 15% in respect of count 3, pursuant to s 9AA of the Sentencing Act 1995 (WA), for her pleas of guilty.

Appeal against conviction: the grounds of appeal

1. The appellant relies upon two grounds of appeal in her appeal against conviction.
2. Ground 1 alleges that a miscarriage of justice occurred because 'the facts admitted by the appellant by her plea of guilty did not establish the elements of count 3 as a matter of law'.
3. Ground 2 alleges that a miscarriage of justice occurred because 'the appellant's plea of guilty was the result of miscommunication between the appellant and her counsel; her plea did not reflect a genuine consciousness of any guilt'.
4. On 23 December 2019, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.

Appeal against conviction: the organisation of the balance of these reasons

1. It is convenient, first, to consider ground 2 and then to consider ground 1 of the appeal against conviction.

Appeal against conviction: ground 2: the appellant's application for leave to adduce additional evidence

1. By an application in the appeal filed 20 December 2019, the appellant applied for leave to adduce additional evidence in the appeal.
2. The additional evidence included an affidavit of the appellant affirmed 11 December 2019 and an affidavit of a barrister, Simon Watters, sworn 21 November 2019.
3. On 23 December 2019, Mazza JA referred the application in the appeal filed 20 December 2019 to the hearing of the appeal.
4. In her affidavit, the appellant states:

(a) On 25 January 2018, the appellant appeared in the Magistrates Court in connection with the charged offences.

(b) On 8 November 2018, the appellant met with a solicitor. The solicitor told her that he had been sent by Mr Watters. At the meeting the solicitor discussed 'the GBH charge' with her, but did not give her any advice in relation to that charged offence. The appellant told the solicitor that she wanted to plead not guilty to 'the GBH charge' and guilty to counts 1 and 2.

(c) On 18 December 2018, the appellant called Mr Watters' office and left a message informing Mr Watters that she wanted to change her plea on 'the GBH charge' from not guilty to guilty.

(d) On 20 December 2018, the appellant telephoned Mr Watters' office again and told him that she had changed her mind and wanted to plead not guilty on 'the GBH charge'.

(e) On 31 December 2018, the appellant telephoned Mr Watters' office again and left a message telling him that she had changed her mind again and wanted to plead guilty on 'the GBH charge'. The appellant also left a message asking Mr Watters to visit her in prison to discuss the matter.

(f) Mr Watters did not visit the appellant as she had asked, or give her any advice, between 31 December 2018 and 21 January 2019, being the date on which she entered pleas of guilty to each of the counts.

(g) The appellant's lawyers did not give her any advice in relation to count 3 before she pleaded guilty. The appellant did not understand that she was pleading guilty to unlawfully doing grievous bodily harm with intent.

(h) At the time of the incident involving Mr Koroma, the appellant did not expect Mr O'Dea and Mr Webb to attack Mr Koroma. She did not intend that Mr Koroma should be hurt.

(i) The appellant did not intend to plead guilty to any offence involving an intention to harm Mr Karoma.

(a) Mr Watters appeared for the appellant as her defence counsel at the sentencing hearing before the sentencing judge.

(b) Mr Watters annexed to his affidavit a copy of a letter dated 19 September 2019 sent by Mr Watters to the appellant's current lawyer. Mr Watters confirmed that the contents of his letter were true and correct.

1. In his letter dated 19 September 2019, Mr Watters states:

(a) On 23 October 2018, Mr Watters received an initial grant of legal aid to represent the appellant.

(b) The appellant was initially charged with doing grievous bodily harm to Mr Koroma without intent.

(c) On 16 October 2018, the charge was upgraded to doing grievous bodily harm with intent. The charge was upgraded on that date at a disclosure committal hearing in the Magistrates Court. The appellant was unrepresented at the hearing on that date.

(d) On 23 October 2018, Mr Watters received a further grant of legal aid to represent the appellant. At that time, Mr Watters was not aware that the charge had been upgraded. He was under the mistaken belief that the appellant had always been charged with doing grievous bodily harm with intent.

(e) On 8 November 2018, a solicitor, Clayton Woodhouse, visited the appellant in prison. Mr Woodhouse visited the appellant at Mr Watters' request. The purpose of the visit was to obtain the appellant's instructions in relation to the issue of bail and the charged offences. Mr Watters gave Mr Woodhouse his file, which contained the police statement of material facts. Mr Watters mistakenly believed that the statement of material facts referred to the charge of doing grievous bodily harm with intent. He was wrong. The statement Mr Watters gave to Mr Woodhouse referred only to the initial charge of doing grievous bodily harm without intent.

(f) On 13 November 2018, Mr Woodhouse sent Mr Watters an email containing the instructions the appellant gave Mr Woodhouse when he visited her. The instructions were that the appellant would plead guilty to counts 1 and 2 but not guilty to 'the GBH charge'. Mr Watters understood the reference in Mr Woodhouse's email to 'the GBH charge' to be 'a shorthand reference by him to the [doing of grievous bodily harm with] intent charge'. Mr Watters mistakenly believed that this was the charge that Mr Woodhouse had discussed with the appellant. Mr Woodhouse's recollection, based on a conversation Mr Watters had with him, was that Mr Woodhouse discussed with the appellant count 3 on the basis that the charged offence was doing grievous bodily harm without intent.

(g) On 19 November 2018, the appellant was committed for trial after pleading not guilty to the upgraded charge of doing grievous bodily harm with intent.

(h) On 18 December 2018, the appellant telephoned Mr Watters' chambers and left a message that she wanted to change her plea on count 3 from not guilty to guilty. Mr Watters understood that this message related to the offence of doing grievous bodily harm with intent. Mr Watters believed that this was the offence that Mr Woodhouse had discussed with the appellant.

(i) On 20 December 2018, the appellant telephoned Mr Watters' chambers again and said she wanted to maintain her plea of not guilty to count 3.

(j) On 31 December 2018, the appellant telephoned Mr Watters' chambers again and left a message that she wanted to change her plea on count 3 from not guilty to guilty and requested that Mr Watters visit her in prison.

(k) Mr Watters did not visit the appellant before her plea of not guilty on count 3 was entered.

(l) On the morning of 2 May 2019, Mr Watters met with the appellant, before the sentencing hearing, in the detention area at the District Court. They discussed matters relevant to her sentencing.

(m) Mr Watters never gave the appellant any advice in relation to the offence of doing grievous bodily harm with intent charged in count 3.

Appeal against conviction: ground 2: the appellant's submissions

1. Counsel for the appellant submitted that it was apparent from the affidavits of the appellant and Mr Watters that the appellant's plea of guilty on count 3 was 'the result of miscommunication between the appellant and [Mr Watters as her defence] counsel'. The appellant's plea of guilty did not reflect a genuine consciousness of guilt in relation to the offence of unlawfully doing grievous bodily harm with intent as charged in count 3.

Appeal against conviction: ground 2: its merits

1. An accused person may enter a plea of guilty whether or not he or she believes himself or herself to have committed the charged offence. As Dawson J observed in Meissner v The Queen:[10]

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence ...

1. 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. See Meissner (157).
2. The circumstances in which a conviction based on a plea of guilty will be set aside were explained by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia:[11]

It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R [1995] HCA 41; (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.

1. Steytler P's statement of principle was reproduced in substance by McLure P (Buss JA and Mazza J agreeing) in Mikulic v The State of Western Australia.[12] See also Chowdhury v Kenny [No 2];[13] Bowden v The State of Western Australia.[14]

Appeal against conviction: ground 2: the State's submissions

1. Counsel for the State conceded that, having regard to the affidavits of the appellant and Mr Watters, ground 2 had been made out. The State accepted that a miscarriage of justice had been occasioned because the appellant did not understand the nature of the offence charged in count 3 and did not intend to plead guilty to that charged offence.

Appeal against conviction: ground 2: its merits

1. In our opinion, counsel for the State's concession in relation to ground 2 was proper. It is apparent from the affidavits of the appellant and Mr Watters that the appellant did not understand the nature of the charge in count 3 and did not intend to admit guilt in relation to that charge. Ground 2 has been made out. A miscarriage of justice has occurred. The judgment of conviction must be set aside.

Appeal against conviction: ground 1: the appellant's submissions

1. Counsel for the appellant submitted that the facts admitted by the appellant by her plea of guilty on count 3 did not establish that 'the appellant acted with intent to do grievous bodily harm'.

Appeal against conviction: ground 1: the State's submissions

1. Counsel for the State submitted that, as a matter of law, the facts admitted by the appellant's plea of guilty on count 3 were capable of establishing her guilt, by the application of s 7(d) and s 9 of the Code, of the offence of doing grievous bodily harm with intent. In particular, it was argued that the appellant counselled Mr O'Dea and Mr Webb to commit an offence against Mr Koroma and, in the circumstances, their commission of the offence of doing grievous bodily harm with intent was a probable consequence of her counselling them to assault Mr Koroma.
2. Counsel argued that the appellant's criminal responsibility in respect of count 3 arose from 'her solicitation of the attack upon [Mr Koroma] by [Mr O'Dea and Mr Webb], which she effected by screaming for help in circumstances where she, a slight female, was being chased by a large man along a suburban street at around 2.30 am'. It was argued that the appellant created 'a false impression by her actions, namely that she was being pursued by Mr Koroma and had been, or was about to be, assaulted by him (knowing full well that he was chasing her because she had been caught by him in the act of burgling the bowling club).
3. Counsel submitted that, having urged and solicited the assault upon Mr Koroma by creating a false impression that she had been or was about to be assaulted herself, and having seen that Mr O'Dea was armed with a weapon which he began to use on Mr Koroma, the commission of the offence of doing grievous bodily harm with intent was a probable consequence of the appellant counselling the assault upon Mr Koroma.
4. It was submitted that the appellant's actions in remaining at the scene and watching the attack upon Mr Koroma constituted further evidence that she intended her actions to result in Mr Koroma being physically stopped and assaulted. Her intention that Mr Koroma be assaulted was further evidenced by the fact that she herself had threatened him with a brick to deter him from pursuing her. When he did not, the appellant continued running and screamed for help.
5. During Mr O'Dea and Mr Webb's attack upon Mr Koroma, the appellant approached Mr Koroma twice. On each occasion the appellant performed an action similar to patting him down (or rummaging through his pockets). On the second occasion, while Mr Koroma was being struck and kicked, the appellant pulled the lanyard around his neck and jerked his body.
6. The appellant could be seen on the CCTV footage pointing out Mr Koroma's location who, at that stage, had managed to escape further down the street. Mr O'Dea and Mr Webb pursued Mr Koroma in the direction pointed out by the appellant.
7. According to counsel for the State, the severity of Mr Koroma's injuries 'may well have fallen beyond the appellant's original intention', but they were, in the ordinary course of things, the probable consequence of the appellant's counselling of the assault by Mr O'Dea and Mr Webb.
8. It was submitted that although the pathway to guilt on count 3 urged on behalf of the State required 'a somewhat intellectual application of the deeming provisions in [s 7(d) and s 9 of the Code], it is nonetheless available as a matter of law on the basis of the facts as established in the materials disclosed to the appellant at the time of entering the plea of guilty', including the police statement of material facts, the prosecution brief and exhibits, the CCTV footage and the appellant's electronically recorded interview with the police.

Appeal against conviction: ground 1: its merits

1. The parties to an offence are specified in s 7, s 8, s 9 and s 10 of the Code. Section 7 and s 9 provide, relevantly:
   1. Principal offenders

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say ‑

(a) ...

(b) ...

(c) ...

(d) Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

1. Counselled offence, mode of execution immaterial

When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the acts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

1. Section 7 (in particular, the phrase '[w]hen an offence is committed' and the deeming provisions in s 7), read with the definition of 'offence' in s 2, is concerned with:

(a) what constitutes 'an offence' for the purposes of s 7;

(b) who is deemed to have taken part in committing the offence;

(d) who may be charged with actually committing the offence.

1. Section 7(d) of the Code provides, in effect, that '[w]hen an offence is committed', a person is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' if the person counsels or procures another person to commit the offence.
2. Section 7(d) is predicated upon and operates '[w]hen an offence is committed'. An offence is committed, for the purposes of s 7(d), when the relevant acts or omissions by 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. Also, the deeming provisions in s 7(d) are engaged when the relevant acts or omissions by 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur. That is, an alleged 'counsellor or procurer' is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' when those relevant acts or omissions (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. See s 7 read with the definition of 'offence' in s 2. See also Birdsall v The State of Western Australia.[15]
3. The effect of s 7(d) is to deem 'the counsellor or procurer', as the case may be, to have done the relevant acts or made the relevant omissions which 'the principal' has done or made, and not to deem 'the counsellor or procurer', as the case may be, to be liable to the same extent as 'the principal'. See R v Barlow.[16]
4. As we have mentioned, in the present case, counsel for the State submitted that the appellant was criminally responsible for the charged offence in count 3 (that is, unlawfully doing grievous bodily harm to Mr Koroma with intent), pursuant to s 7(d), in that she 'counselled' Mr O'Dea and Mr Webb to commit that offence against Mr Koroma.
5. The term 'counsel' in s 7(d) and s 9 (and cognate forms of that term in those provisions) connotes 'to urge' or 'to advise' another person to commit an offence. See Stuart v The Queen;[17] R v Oberbillig;[18] R v Georgiou;[19] R v Hawke.[20]
6. The term 'counsel' in s 7(d) and s 9 (and cognate forms of that word in those provisions) may also, if appropriate in the circumstances, connote 'to solicit'. See R v Calhaem;[21] Oberbillig (345); Georgiou [78].
7. However, a person does not 'counsel' another person to commit an offence, within s 7(d) or s 9, if he or she merely 'instigates' the commission of an offence, in the sense of suggesting it, without urging, advising or soliciting the commission of the offence. See Hutton v The Queen.[22] Hutton was overruled in R v Kirkby,[23] but not on this point.
8. Although s 7(d) does not expressly state a mental element for counselling or procuring, it has been held that it is implicit in the provision that a person will not be criminally responsible under s 7(d) unless the person knew all of the essential facts that constitute the offence committed by 'the principal' and the person intentionally counselled or procured the commission by 'the principal' of that offence. See R v Beck;[24] R v Jervis;[25] Ward v The Queen;[26] Hawke [39] (Fraser JA), [61] (Philippides JA).
9. Section 9 extends the criminal responsibility of a counsellor.
10. The relationship between s 7(d) and s 9 was explained by Gibbs J in Stuart as follows:

[T]he only part of s. 7 with which we are now directly concerned is par. (d). The question whether one confederate has counselled another to commit an offence requires a consideration of what the former urged or advised the latter to do. If the latter then does commit an offence which is different from that which he was counselled to commit, the former is made liable by the combined effect of ss. 7(d) and 9 provided that the facts constituting the offence are a probable consequence of carrying out the counsel. Stuart having counselled Finch to light the fire at the time and in the manner which he did was liable if the offence of murder actually committed by Finch was a probable consequence of carrying out that counsel (445).

1. So, by s 9, if a person has counselled 'the principal' to commit an offence, within s 7(d), and an offence is actually committed by 'the principal' after such counsel has been given, the counsellor will be deemed to have committed the offence actually committed, even if the offence actually committed is different from the offence that was counselled and even if the offence actually committed was committed in a different way from the way that was counselled. However, the counsellor will only be criminally responsible for the offence actually committed by 'the principal' if the acts constituting the offence actually committed were a probable consequence of carrying out the counsel.
2. For facts constituting an offence to be 'a probable consequence' of counselling, within s 9, they must not merely have been possible, but must have been probable in the sense that they could well have happened as a result of carrying out the counselling. See Darkan v The Queen.[27]
3. In the present case, we are of the opinion, after considering the material facts alleged by the State at the appellant's sentencing hearing and after examining the prosecution brief and exhibits, the CCTV footage and the appellant's electronically recorded interview with the police, that the relevant facts which the State may allege against the appellant are as follows:

(a) The appellant, a slight female aged 18, was being chased by Mr Koroma, a large man aged 33, along a suburban street at about 2.30 am on 20 January 2018.

(b) As she ran from Mr Koroma, the appellant screamed and shouted 'Help. I'm getting attacked'.

(c) The appellant knew that Mr Koroma was chasing and endeavouring to apprehend her because he had seen her burgling the bowling club.

(d) Mr O'Dea and Mr Webb were woken by the appellant's screaming and shouting for assistance. Mr O'Dea was aged 44, 5 foot 10 inches in height and of stocky build. Mr Webb was aged 39 and of stocky build. Mr O'Dea armed himself with a weapon. Mr O'Dea and Mr Webb then left their house at 47A Griffin Crescent, Manning. They attacked Mr Koroma outside the house and, on the State's case, caused him grievous bodily harm with intent.

(e) The appellant remained at the scene and watched while Mr O'Dea and Mr Webb attacked Mr Koroma outside the house at 47A Griffin Crescent. She did not say or do anything to persuade Mr O'Dea and Mr Webb not to attack Mr Koroma or to cease attacking him.

(f) During Mr O'Dea and Mr Webb's attack upon Mr Koroma outside the house at 47A Griffin Crescent, the appellant approached Mr Koroma twice. On each occasion, the appellant patted Mr Koroma or rummaged through his pockets. On the second occasion, while Mr Koroma was being struck and kicked by Mr O'Dea and Mr Webb, the appellant pulled the lanyard around Mr Koroma's neck and jerked his body.

(g) After Mr Koroma managed to escape and walk down the street, the appellant pointed out his location to Mr O'Dea and Mr Webb, who pursued him in the direction indicated by the appellant.

(h) The police located Mr Koroma, Mr O'Dea and Mr Webb at 2.42 am on the front lawn of 37 Challenger Avenue, Manning, near the intersection of Griffin Crescent and Challenger Avenue. According to Mr Koroma, when the police arrived Mr O'Dea and Mr Webb were on top of him.

(i) There is no evidence that Mr O'Dea and Mr Webb caused any grievous bodily harm to Mr Koroma after Mr Koroma had escaped from outside the house at 47A Griffin Crescent and Mr O'Dea and Mr Webb had pursued him.

1. In our opinion, having regard to the relevant facts which the State may allege against the appellant, it is at least reasonably arguable that the appellant counselled Mr O'Dea and Mr Webb to commit an offence, within s 7(d). However, it is not reasonably arguable that the appellant counselled Mr O'Dea and Mr Webb to commit the offence of unlawfully doing grievous bodily harm with intent.
2. It is at least reasonably arguable that:

(a) By screaming and shouting, 'Help. I'm getting attacked', the appellant falsely represented that Mr Koroma had unlawfully assaulted her and that he was pursuing her for the purpose of unlawfully assaulting her again.

(b) The appellant, in making that representation, impliedly urged or solicited Mr O'Dea and Mr Webb to assist her by restraining and, if necessary, assaulting Mr Koroma to prevent him from continuing his alleged attack upon her.

(c) The offences which the appellant urged or solicited Mr O'Dea and Mr Webb to commit were the unlawful detention and the unlawful assault of Mr Koroma.

1. It is not reasonably arguable that the appellant, by remaining at the scene and watching while Mr O'Dea and Mr Webb attacked Mr Koroma outside the house at 47A Griffin Crescent, either alone or in combination with any other relevant facts which the State may allege against the appellant, expressly or impliedly urged or solicited Mr O'Dea and Mr Webb to commit the offence of unlawfully doing grievous bodily harm with intent.
2. It is at least reasonably arguable that the appellant, by patting Mr Koroma and rummaging through his pockets and by pulling the lanyard around Mr Koroma's neck and jerking his body, committed an unlawful assault. However, it is not reasonably arguable that the appellant by that conduct, either alone or in combination with any of the other relevant facts which the State may allege against the appellant, expressly or impliedly urged or solicited Mr O'Dea and Mr Webb to commit the offence of unlawfully doing grievous bodily harm with intent.
3. It is at least reasonably arguable that the appellant, by pointing out Mr Koroma's location to Mr O'Dea and Mr Webb, after Mr Koroma managed to escape and walk down the street, aided Mr O'Dea and Mr Webb in committing any subsequent acts of detaining and assaulting Mr Koroma. However, it is not reasonably arguable that the appellant by that conduct, either alone or in combination with any other relevants facts which the State may allege against the appellant, expressly or impliedly urged or solicited Mr O'Dea and Mr Webb to commit the offence of unlawfully doing grievous bodily harm with intent, in that there is no evidence that Mr O'Dea and Mr Webb caused any grievous bodily harm to Mr Koroma after Mr Koroma had escaped from outside the house at 47A Griffin Crescent and Mr O'Dea and Mr Webb had pursued him.
4. Further, there is no evidence that the appellant knew or believed, and there is no basis in the relevant facts which the State may allege against the appellant for inferring that the appellant knew or believed, that Mr O'Dea and Mr Webb would respond to her conduct by inflicting on Mr Koroma, with intent, bodily injury of such a nature and severity as to endanger, or be likely to endanger, Mr Koroma's life, or to cause, or be likely to cause, permanent injury to his health. See the definition of 'grievous bodily harm' in s 1(1) of the Code.
5. In our opinion, s 9 does not assist the State in its case against the appellant based upon s 7(d). It is not reasonably arguable that the acts of Mr O'Dea and Mr Webb were a probable consequence of carrying out the appellant's implied urging or soliciting of Mr O'Dea and Mr Webb to assist her by restraining and, if necessary, assaulting Mr Koroma to prevent him from continuing his alleged attack upon her. In particular, it is not reasonably arguable that an attack, with intent, of the nature and severity which Mr O'Dea and Mr Webb inflicted upon Mr Koroma outside the house at 47A Griffin Crescent was probable in the sense that it could well have happened as a result of carrying out the appellant's alleged counsel.
6. We are therefore satisfied that it is not reasonably arguable, on the basis of:

(b) the evidence in the prosecution brief and exhibits, the CCTV footage and the appellant's electronically recorded interview with the police,

that the appellant is criminally responsible, pursuant to s 7(d) read with s 9 of the Code, for the offence charged in count 3, namely that the appellant, with intent to maim, disfigure, disable or do some grievous bodily harm to Mr Koroma, unlawfully did grievous bodily harm to Mr Koroma, contrary to s 294 of the Code.

1. Counsel for State did not submit that the appellant may be criminally responsible for the offence charged in count 3 pursuant to any other provision of s 7 or pursuant to s 8 of the Code.
2. Ground 2 has been made out.

Appeal against conviction: the appropriate disposition of the appeal

1. Section 30(5) and s 30(6) of the Criminal Appeals Act 2004 (WA) apply in the case of an appeal against conviction by an offender. Those provisions read, relevantly:

(5) If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -

(a) order a trial or a new trial; or

(b) enter a judgment of acquittal of offence A; or

(c) if -

(i) the offender could have been found guilty of some other offence (offence B) instead of offence A; and

(ii) the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,

enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or

...

(6) If the Court of Appeal enters a judgment of acquittal of offence A or enters a judgment of conviction of offence B, it may vary any sentence -

(a) that was imposed for an offence other than offence A at or after the time when the offender was sentenced for offence A; and

(b) that took into account the sentence for offence A.

1. By s 30(5), if this court allows an offender's appeal and sets aside the judgment of conviction for the offence in question (offence A), the court must, relevantly, order a trial or a new trial (s 30(5)(a)) or enter a judgment of acquittal for offence A (s 30(5)(b)) or, if the conditions in par (i) and par (ii) of s 30(5)(c) are satisfied, enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence imposed for offence A.
2. The power of this court under s 30(5)(a) to order a trial or a new trial applies where the offender whose appeal has been allowed was convicted after a trial (in which case this court may order a new trial) or was convicted following his or her plea of guilty (in which case this court may order a trial).
3. The power of this court under s 30(5)(b) to enter a judgment of acquittal for offence A (being the offence of which the offender who has appealed successfully was convicted) applies where the conviction was entered after a trial and, also, where the conviction was entered following the offender's plea of guilty. See Gibson v The State of Western Australia;[28] Jasmin v The Queen.[29]
4. The power of this court under s 30(5)(b) to enter a judgment of acquittal without a trial or a retrial is an exceptional course and one to be used sparingly. See Mallard v The Queen.[30]
5. As Owen JA (Jenkins J agreeing) observed in McHenry v The State of Western Australia [No 2],[31] in the context of a retrial:

Given the wide range of circumstances that can arise it is undesirable, and probably impossible, to lay down fixed rules governing the exercise of the power to order, or refrain from ordering, a new trial: Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [91] (and see also [23]). The power to enter a judgment of acquittal can be exercised for a number of reasons. They include:

(a) where it is apparent (as a matter of law) that the prosecution must inevitably fail and it would therefore be futile to order a new trial: Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, 188; and

(b) where the prosecution indicates that it does not seek an order for a retrial: Griffiths v The Queen [1994] HCA 55; (1994) 69 ALJR 77, 82.

1. It is plain from the text of s 30(5)(c), especially from the text of par (ii), that the power of this court under s 30(5)(c) to enter a judgment of conviction for offence B and to impose a sentence for offence B that is no more severe than the sentence imposed for offence A is exercisable only where the offender was convicted of offence A after a trial. The power is not exercisable where the offender was convicted of offence A following his or her plea of guilty. See Newland v The State of Western Australia.[32]
2. In the present case, we are satisfied that this court should exercise the power conferred by s 30(5)(b) and enter a judgment of acquittal in respect of the offence in charged in count 3 without a trial. As we have explained, in the course of considering ground 2, it is apparent, as a matter of law, that the prosecution of the appellant at a trial on the charge pleaded in count 3 must inevitably fail. It would therefore be futile to order a trial of that charge pursuant to s 30(5)(a).
3. In the present case, we are satisfied that, on the assumption that the condition in s 30(6)(b) is satisfied, this court should not exercise the power conferred by s 30(6). The appellant was held in custody in respect of counts 1, 2 and 3 for about 19 months, a period that exceeds the sentences imposed by the sentencing judge for counts 1 and 2. The sentences imposed by her Honour for counts 1 and 2 were open to her Honour on a proper exercise of the sentencing discretion.

1. The appellant's application in the appeal filed 20 December 2019 for leave to adduce additional evidence in the appeal should be granted. We would grant leave to appeal on ground 2. Both ground 1 and ground 2 have been made out. We would allow the appeal. The judgment of conviction on count 3 should be set aside and a judgment of acquittal on that count should be entered.

1. The appellant relies upon three grounds of appeal in her appeal against sentence.
2. Ground 1 alleges that the sentencing judge erred in finding, and sentencing on the basis, that the appellant did not play a lesser role than Mr O'Dea and Mr Webb in the commission of count 3.
3. Ground 2 alleges that the sentence of 6 years' imprisonment imposed for count 3 was manifestly excessive.
4. Ground 3 alleges that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle.
5. On 23 December 2019, Mazza JA granted leave to appeal on each of the grounds in the appellant's appeal against sentence.
6. It is unnecessary, in view of the outcome of the appeal against conviction, to decide the appeal against sentence. Consequently, the appeal against sentence should be dismissed.

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

[10] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157.

[11] Vella v The State of Western Australia [2006] WASCA 129 [26].

[12] Mikulic v The State of Western Australia [2011] WASCA 14 [23].

[13] Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P; Buss & Mazza JJA agreeing).

[14] Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168 [19] (Buss JA; McLure P & Mazza JA agreeing).

[15] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [158] (Buss P & Mazza JA).

[16] R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 10 (Brennan CJ, Dawson & Toohey JJ).

[17] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 445 (Gibbs J; Mason J agreeing).

[18] R v Oberbillig [1989] 1 Qd R 342, 345 (Moynihan J; Kelly SPJ & Ryan J agreeing).

[19] R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150 [78] (McPherson & Williams JJA & Atkinson J).

[20] R v Hawke [2016] QCA 144; (2016) 259 A Crim R 114 [36] ‑ [39] (Fraser JA; Philippides JA & Jackson J agreeing).

[21] R v Calhaem [1985] 1 QB 808, 813 (Parker LJ delivering the judgment of the Court of Appeal of England & Wales).

[22] Hutton v The Queen (1991) 56 A Crim R 211, 214 ‑ 215 (Ryan J).

[23] R v Kirkby [1998] QCA 445; [2000] 2 Qd R 57.

[24] R v Beck [1990] 1 Qd R 30, 38 (Macrossan CJ; McPherson J agreeing).

[25] R v Jervis [1993] 1 Qd R 643, 648 (McPherson ACJ).

[26] Ward v The Queen (1997) 19 WAR 68, 72 ‑ 75 (Steytler J; Kennedy & Franklyn JJ agreeing).

[27] Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [81] (Gleeson CJ, Gummow, Heydon & Crennan JJ).

[28] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [204] ‑ [210] (Buss P, Mazza & Beech JJA).

[29] Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505 [206] ‑ [212] (Buss P), [248] ‑ [255] (Mazza & Mitchell JJA).

[30] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [43] (Gummow, Hayne, Callinan & Heydon JJ), [91] (Kirby J).

[31] McHenry v The State of Western Australia [No 2] [2010] WASCA 71 [41].

[32] Newland v The State of Western Australia [2018] WASCA 124 [28] (Buss P, Mazza & Beech JJA).