RILEY -v- SMIRK [2011] WASC 21 | Case summary

RILEY -v- SMIRK [2011] WASC 21 | Case summary | Zoe

[63]

1 This is an application for leave to appeal against sentence, ordered to be heard with the appeal itself. The sentence was imposed in the Magistrates Court on the appellant's pleas of guilty to a number of charges spanning two time periods. The sentencing magistrate considered the bulk of these charges to relate to drug trafficking by the appellant. The drug was methylamphetamine. The total effective sentence was one of 18 months' immediate imprisonment with eligibility for parole on eight charges, and a fine of $1,000, on one charge. Of the charges for which the appellant received sentences of immediate imprisonment, two were for offers to sell a prohibited drug, methylamphetamine; one was for simple possession of that drug; two were for carrying an article with intent to cause fear; one was for possession of a controlled weapon and one was for possession of a sum of money reasonably suspected to have been unlawfully obtained. The charge for which he received a fine was for possession of ammunition without being the holder of the requisite licence. These eight charges were for matters occurring in early 2008. The ninth charge, for which the appellant also received a sentence of immediate imprisonment, was for possession of a firearm without being the holder of the requisite licence or permit. This charge was for a matter occurring nearly one year later, in early 2009, involving a search of premises where the appellant was while on bail for the charges for the earlier matters. As a result of other matters alleged to have occurred at the same time, the appellant was also charged with further offences, including offences of possession of a prohibited drug with intent to sell or supply. Following the later charges, the appellant's bail for the earlier charges was revoked and he was remanded in custody. A judge of this court subsequently refused an application for bail. However, about one year later, following a voir dire in the District Court with respect to the admissibility of certain admissions by the appellant in the course of the search, the most serious charges at least were withdrawn, ultimately leaving the charge for the possession of the firearm. In anticipation of that withdrawal, the same judge of this court granted bail on both the earlier and the later charges.

[127]

The first question is whether the appellant should have leave to adduce the further evidence. The parties did not make any submissions as to the source of this Court's power to admit the further evidence. There are two possible sources: the specific power in s 31(2) or the general power in s 40(1)(e) of the Criminal Appeals Act 2004 (WA). Further, the parties approached the matter on the basis that any discretion was to be exercised by reference to the common law rules relating to the admission of fresh or new evidence. That matter was considered by Pullin JA in de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 at 330 - 331. See also CDJ v VAJ (1998) 197 CLR 172 at [52] - [102]. As the issue was not in contest in the appeal, I will proceed on the assumption made by the parties whilst reserving my position on the question.

Fresh evidence is evidence which either did not exist at the time of the proceedings or which could not then with reasonable diligence have been discovered. New evidence is evidence which was available at the proceedings or which could, with reasonable diligence, then have been discovered: Beamish v The Queen [2005] WASCA 62 at [9]. A sentence will only be set aside on the basis of new evidence if that evidence establishes that the sentence under challenge should not have been imposed: Lawless ... at 676 per Mason J.

The further evidence is new not fresh evidence. It was available at the time of sentencing. It could, and should, have been adduced at that time. The public interests in the finality of litigation and the due and proper administration of justice do not cease to apply because of the criminal nature of the proceedings. In the common law rules, these interests are reflected in the requirement that the new evidence must establish that the sentence should not have been imposed. I would refuse leave to adduce the further evidence and the associated application to amend the grounds of appeal because the further evidence, even if accepted, falls well short of establishing that the appellant should not have been sentenced to a total term of 8 years (R v Geesing (1985) 38 SASR 226 at 229). This conclusion is best explained in the course of addressing the existing ground of appeal that the total sentence was manifestly excessive.

[128]

I have explained the legal issues arising concerning the admission and use of further evidence on the hearing of an appeal in de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291. In summary, s 39(1) of the Criminal Appeals Act 2004 states that this Court must decide an appeal on the evidence and material that was before the lower court. Section 39(3) states that subs (1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) empowers the court to admit other evidence. As I indicated in de la Espriella-Velasco at [152], the distinction between 'fresh' and 'new' evidence continues to be of importance. The distinction between 'fresh' and 'new' evidence is well understood and is explained in Mickelberg v The Queen (2004) 29 WAR 13 at 410 - 411. The fact that a tactical decision may explain why evidence was not proffered in a criminal case would be relevant to the court's decision about whether new evidence should be admitted at the hearing of an appeal. This is explained in de la Espriella-Velasco at [153] - [154].

No evidence at all has been proffered to explain why the appellant failed to place any evidence before the sentencing Judge to show that he would forfeit (as he believed) or had already forfeited (as I have concluded) $101,000 of lawfully acquired property. In the absence of any such evidence, it is open to conclude that the failure to do so was for misplaced tactical reasons. As I have mentioned, the submission made on his behalf states that the appellant believes there are further proceedings in the Supreme Court necessary to bring about a forfeiture of his property. Implicit in this submission was that the appellant believes that in the proceedings which he believes are still to be decided, he will be able to gain a determination that he lawfully acquired the $101,000. His belief that he will not forfeit his money until some further proceedings are determined is a belief based on a failure to understand the provisions of the Confiscation Act. Nevertheless, this belief may well have led him to believe that claiming the money was his (as a first step to proving it was lawfully acquired it) would have been to his disadvantage. This would provide the misplaced motive for a tactical decision not to put evidence before the sentencing Judge to show that the property was his and was lawfully acquired.

If I am wrong about there being misplaced motive and a tactical decision, it would not alter the outcome because the Court has been given no evidence at all about why the material contained in the appellant's affidavit was not put before the sentencing Judge. There is therefore no foundation for the application for an order that this further evidence should be admitted pursuant to s 40 of the Criminal Appeals Act. I would therefore refuse the appellant's application under s 40 of the Criminal Appeals Act to admit the appellant's affidavit.

[151]

66 Before me, counsel for the appellant contended that the appellant's pleas of guilty to the charges of the first drug offer offence of 2008 and the second drug offer offence of 2008 should be equivalently treated to the plea to the charge of the simple drug possession offence of 2008. I understood that this was, in part, because the appellant had indicated he would plead guilty to the amended forms of the charges from or about the time they were amended, although not earlier. I understood there had not been a plea at that earlier time as counsel had indicated to the magistrate that, although the appellant had offered to plead guilty 'as with the possess methamphetamine charges for some time', counsel could not 'advance ... the proposition that he should be entitled to the full 25 per cent discount in relation to those matters' (22 July 2010, ts 14). However, as I understood counsel for the appellant's submissions, the case for the equivalence of treatment contended for, notwithstanding that difference, derived from the fact that the prosecution case in relation to what became the charges of relevant offences was not 'watertight', as indicated by the withdrawals of other like charges as part of the plea negotiation at the time. This was also indicated by the completion of the prosecution case after an unexplained delay of some 16 months by a witness statement of a police officer dated 28 August 2009 identifying the appellant's voice in telephone intercepts, where the police officer's evidence in relation to his exchange with the appellant concerning what became the drugs possession with intent charges of 2009 was the subject of an 'express ruling of improper and dishonest conduct' in Riley WADC. I took this submission to be that a greater discount was warranted, by reference to the factors of unexplained delay in the completion of the prosecution's disclosure, the withdrawal of other charges and the witness statement of the police officer, for what they said as to the weakness of the prosecution case, and for other (unspecified) reasons.

[158]

Detective Bonner suggested during cross examination at the hearing of this application that he was able to remember the exchange he had with the accused, claiming that he knew exactly what was happening at that particular time, that he knew the police were not to have conversations and his evidence about what he stated to the accused was exactly what the accused was told. Neither of the Detectives made notes of what was discussed and, of course, it was not recorded on camera. None of the discussion with the accused during the second break, about which Detective Bonner and Detective Blanchard gave evidence on this application, appeared in their initial statements prepared for the purpose of the prosecution of these charges against the accused. It was some months later in December 2009 and January 2010, after the accused challenged the admissibility of the admissions as recorded during the search, that these two detectives produced supplementary statements.

Detective Bonner contacted Detective Blanchard by phone to ask him to provide a supplementary statement. I have considerable concern about this discussion between Detective Bonner and Detective Blanchard. Detective Bonner did not just tell Detective Blanchard that a statement about what occurred during the second break was needed. Detective Bonner agreed that he told Detective Blanchard his (that is, Detective Bonner's) recollection of what was discussed during the second break, asked Detective Blanchard if he could recall this and then asked Detective Blanchard to provide a statement. Detective Blanchard agreed that Detective Bonner related to him his version of events, saying 'Well, he'd have to, otherwise I wouldn't know what he was talking about', although he could not remember the exact conversation. After this, Detective Blanchard prepared his supplementary statement. There is, as a result of this, a real issue as to the independence and reliability of each Detective's recollection of the discussion with the accused.

Taking into account all of these circumstances as I have outlined in [9] to [12], [15] and [35] to [51], on the balance of probabilities I find that the accused did not make the relevant admission because of a free choice to speak or be silent, but because he was induced to believe that if he admitted to possession of the drugs Ms Hunter would not be charged. This belief arose from:

[173]

The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender, will depend on all the circumstances of the particular case. Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some guiding principles may be extracted from the preponderance of the authorities referred to by McLure JA. Like her Honour, I put to one side those authorities in which issues of delay and totality intersect.

First, delay is not, of itself, a mitigating factor.

Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.

Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.

Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.

Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.

Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:

(a) the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in 'uncertain suspense'; or

(b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.

Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.

The guiding principles I have stated are not intended to be exhaustive or inflexible.

[230]

Her Honour then stated that she did not believe that the appellant was entitled to any other reduction of the sentence imposed by Dowd J.

The appellant relied upon the decision of this Court in R v Keyte (unreported, 16 March 1986) to support the submission that the sentence was excessive. In that case, conditional liberty by way of bail over a lengthy period was taken into account in determining the outcome of the appeal as representing a 'penal consequence' already suffered by the applicant before the Court. The appeal related to a sentence of 2 years imprisonment imposed for an offence of supplying a relatively small quantity of Indian hemp. The applicant was 29 years of age, without any previous convictions and had been on bail for three years leading up to the hearing of the appeal. Although the Court considered that some custodial sentence would have been called for at the time of sentence, it intervened to quash the sentence and imposed a bond and fine.

In the present case, the appellant was first granted bail on 14 November 1990, approximately one month after his arrest for the murder. The conditions of bail required him to remain in Moree, unless he was attending conferences with his legal advisers, and to report to the police three times a day. On 18 November 1991, the reporting conditions were varied so that he was required to report to police twice daily. On 8 April 1993, the bail conditions were again varied, requiring him to report once a day. The appellant went into custody following his conviction before Newman J on 28 October 1993. After this conviction was quashed on appeal, he was again released on bail on 15 November 1995. It was a condition of his bail that he was to reside with his mother and to report to police twice a week. He was also required to surrender his passport. He was returned to custody on 4 June 1997, following his conviction before Dowd J. On 31 May 2000, he was again released on bail following the quashing of the conviction on appeal. It was a condition of that bail that he was to reside with his mother and report to police once a week.

We accept that in an appropriate case the length and terms of an offender's period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence.

There was here an obvious and significant disruption to the appellant's life and restrictions upon his liberty over a lengthy period as a result of the offence he committed. Dowd J, while accepting that this was a relevant matter, declined to reduce the sentence by reason of the period served on bail. The primary judge also appears to have accepted that it was a relevant matter, as was the uncertainty undoubtedly felt by the appellant during the period involving the three trials. But her Honour was not required to reduce the sentence because of these considerations. Clearly her Honour viewed the sentence imposed by Dowd J as the very least that the appellant should serve for the offence he committed. Experienced counsel, who appeared for the appellant, seems to have been of the same view. We are also of that opinion. There was no error in the sentence imposed on the appellant.

[249]

As I understood it, counsel's submission here was rather that although the Sentencing Act does not require specific reference to the sentencing options, it does still require the sentencing Judge to give proper consideration to them. That, I think, must be right. It follows from a plain reading of the section. The question then is whether in the particular case what appears reveals either that no consideration was given to a sentencing option lower in the hierarchy, or that inadequate consideration was given to it. In some cases it will be readily apparent that an option is not realistically open and in those circumstances a sentencing Judge could not be criticised for not expressly referring to it. In other cases, the circumstances may be such that two or more options may be realistically open and then it would usually be necessary for the sentencing Judge to make some reference to why the less severe option is not appropriate.

The High Court has made it clear that it would be an error of law to conclude that a sentence of imprisonment is appropriate and only then consider whether it can be suspended. The court held in Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315 that such an approach reverses the statutory process. Furthermore, the court in Dinsdale emphasised that it is wrong to reserve a suspended sentence only for those cases in which there is a prospect of rehabilitation or a need to show mercy to an offender; all of the circumstances must be considered, not only as going to the length of the term of imprisonment, but also as to whether or not suspended imprisonment is appropriate.

Nor is a suspended sentence to be reserved for minor offences. Section 76 of the Sentencing Act expressly allows a sentence of up to 5 years imprisonment to be suspended. It therefore necessarily contemplates that sentencing option may be used in an appropriate case even in respect of an offence of sufficient seriousness as to justify a term of imprisonment of up to 5 years.

The point was made by Murray J in Minchinton (1998) 104 A Crim R 502 at 507, where his Honour reiterated what he had earlier said in R v GP (1997) 18 WAR 196, that:

RILEY -v- SMIRK [2011] WASC 21 (28 January 2011)

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RILEY -v- SMIRK [2011] WASC 21 (28 January 2011)

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