SHEPHERD -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 152 (16 November 2022)

The course of proceedings in the District Court

1. The appellant was charged on an indictment alleging offences by four people: the appellant, Ms Amelia Kreinbihl, Mr Robert O'Bryan and Mr Emanuele Ardizzone.
2. On 9 April 2021, the matter was listed for trial for 17 May 2022. There were various directions hearings during 2021.
3. On 28 March 2022, Mr O'Bryan pleaded guilty and the court accepted the State's notice of discontinuance in relation to Mr Ardizzone. The State clarified that the trial, listed for 17 May 2022, would continue as planned, but only as against Ms Kreinbihl and the appellant.
4. On 9 May 2022, the State filed an application to adduce evidence under s 31A of the Evidence Act 1906 (WA) against the appellant and against Ms Kreinbihl. The evidence the subject of that application included a large number of text messages downloaded from the appellant's mobile telephone, some of which passed between the appellant's phone and Ms Kreinbihl.
5. On 12 May 2022, there was a directions hearing concerning the State's s 31A application. The appellant's counsel indicated that the appellant opposed the application. The application was adjourned to the first day of trial, 17 May 2022.
6. On 17 May 2022, the appellant's counsel tested positive to COVID-19.
7. The matter was adjourned to 18 May 2022. On 18 May 2022, given the situation of the appellant's counsel, the State's s 31A application was adjourned to 24 May 2022, on the basis that the trial would start on 25 May 2022.
8. On 24 May 2022, the appellant and the appellant's counsel appeared in court. The appellant's counsel informed the judge that he had conferred with the appellant that morning and that he expected her to change her plea to guilty. The appellant was then arraigned and pleaded guilty:[1]

[APPELLANT'S COUNSEL]: Thank you. Your Honour, I've had an opportunity this morning to confer [with] my client in terms of the matter generally. I can confirm that if the indictment is put to my client, I expect a change of plea, a plea of guilty to the single count she faces, which is count 2.

STEWART DCJ: Okay. Thank you.

Yes, Mr Clerk of Arraigns?

THE CLERK OF ARRAIGNS: Leanne Nicole Shepherd, you stand charged by that name that on 12 March 2019 at Wattle Grove you had in your possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. And that the offence involved a trafficable quantity of methylamphetamine. How say you? Are you guilty or not guilty?

[APPELLANT]: Guilty.

1. The judge then asked the appellant's counsel if the plea was in accordance with his instructions, to which he replied, '[i]ndeed it is, yes'.[2] The judge entered a judgment of conviction.
2. The prosecutor intimated that he had spoken to the appellant's counsel about bail. After noting that the appellant has a mother for whom she cares and five young children, the prosecutor said that the State did not oppose bail being granted 'to allow [the appellant] to get her affairs in order'.[3]
3. The appellant was granted bail until 29 July 2022. The judge spoke directly to the appellant, saying to her that her Honour would sentence the appellant on 29 July and that, in the meantime, there would be a pre‑sentence report. The judge said that, as the prosecutor had said, the court would give the appellant time to get her affairs in order. The judge informed the appellant that bail was renewed on the same terms as previously. Her Honour inquired of the appellant whether she had any questions about what her Honour had told her, to which the appellant replied, '[n]o, your Honour'.[4]
4. The court proceeded to deal with the s 31A application in respect of Ms Kreinbihl, finding that the text messages downloaded from the appellant's phone had significant probative value and were admissible in the case against Ms Kreinbihl.
5. On 29 July 2022, the appellant and Ms Kreinbihl, who was convicted by a jury on 31 May 2022, were sentenced. On 13 June 2022, the State filed its outline of submissions in relation to their sentencing. In those submissions, the State invited the court to make the following findings of fact:

(a) Both the appellant and Ms Kreinbihl were engaged in the business of drug dealing at the time of the offending;

(b) the two sets of text message conversations included messages to do with drug dealing;

(c) the messages captured on the appellant's mobile telephone included messages to do with drug dealing; and

(d) the vast majority of the 55.1 g of methylamphetamine the subject of count 2 was for sale.

1. On 26 July 2022, the appellant's counsel filed sentencing submissions on her behalf. The sentencing submissions began by recognising that the authorities made clear that the appellant must receive a term of imprisonment, which was evidently a reference to immediate imprisonment. The submissions went on to seek an order for eligibility for parole.
2. The appellant's sentencing submissions accepted the facts asserted by the State, saying that:

(a) the appellant was involved in drug dealing at the time of the offence;

(b) the possession of the relevant quantity of methylamphetamine was not isolated;

(c) the text messages revealed an ongoing involvement with drug distribution;

(d) 55.1 g of methylamphetamine is not an insignificant amount, such that the appellant could not be characterised as a low‑level dealer;

(e) the drugs were of a relatively high purity; and

(f) the distribution of drugs involving the quantity of 55.1 g undoubtedly included an element of commercial gain.

1. The submissions referred to the appellant's methylamphetamine addiction, saying that the appellant had resorted to the distribution of the drug to finance her use.
2. The submissions also referred, by way of mitigation, to the appellant's plea of guilty, albeit acknowledging that it came very late in the proceedings; to the appellant's remorse, as evidenced in the pre‑sentence report; and to the appellant's personal circumstances.
3. At an early stage of the sentencing hearing on 29 July 2022, the judge said to the appellant's counsel that one of the appellant's references said that she should be given more opportunity to speak to her legal team. Counsel responded as set out in the following exchange with the court:[5]

STEWART DCJ: Now, you've had time with Ms Shepherd, haven't you? I'm just conscious of the fact that I received - one of the references I received yesterday was that - let me just get it - from Ms Shepherd's doctor.

[APPELLANT'S COUNSEL]: Yes.

STEWART DCJ: Saying that, you know - hold on. Let me just get it - she should be given more opportunity to speak to her legal team.

[APPELLANT'S COUNSEL]: Yes. It - your Honour would know from the pre-sentence report in terms of assertions and then later, qualifications perhaps best exemplified by the follow-up call to the author of the report, explaining exactly the culpability.

STEWART DCJ: Yes.

[APPELLANT'S COUNSEL]: Your Honour, I'm well satisfied having gone through it in great detail and Ms Shepherd understands the effect of her plea and what is she to be sentenced for today.

STEWART DCJ: Yes.

[APPELLANT'S COUNSEL]: It clearly bears upon her to a significant extent. Her emotion throughout this process has been clear on all views. She appreciates she's in a very difficult position.

As late as earlier this morning she urged upon me to ask your Honour or submit to your Honour whether a suspended sentence is open. And again, I've explained to her and it's written - it's provided by way of written submissions and as it's been explained to Ms Shepherd previously, this is serious drug offending.

STEWART DCJ: Yes.

[APPELLANT'S COUNSEL]: And the authorities of the Court of Appeal, which provide guidance to your Honour have said very clearly that a term of immediate imprisonment is to be impose here.

1. The appellant's counsel said that the appellant showed some reluctance to accept responsibility, observing as follows:[6]

Perhaps the circumstances of the plea don't need to be fully canvassed, but there was a reluctance to accept responsibility. And that's echoed again in the PSR. If I can say, once confronted with the substance of the text messages, and the references to hamburgers and HBs, it became pretty clear and she accepted that.

1. Counsel's reference to the pre‑sentence report was evidently directed to the following aspects of it:

(a) At the outset of the interview, the appellant denied that she had ever used illicit substances, which she then contradicted by saying that she had used cannabis since 2000. She said that she had never used methylamphetamine, which she again contradicted by admitting that she used methylamphetamine recreationally.

(b) When the appellant's prior offending was discussed, she continued to deny the use of methylamphetamine at that time and claimed her use of a Ventolin puffer caused the positive roadside reading to methylamphetamine. The appellant subsequently made telephone contact with the author of the pre‑sentence report three days after the interview, advising that she had been untruthful during the interview, admitting that she had been using methylamphetamine almost every day leading up to the incident in March 2019, and saying that it was her sister who introduced her to methylamphetamine, that she (the appellant) had made a poor decision and that she was easily influenced.

(c) As to the circumstances of the offence, the appellant initially denied having any knowledge of any illicit substances in the vehicle, saying that she had lent her sister some of her clothing and that was why her DNA came to be on the material. She subsequently retracted that claim, saying that she had placed the drugs into the glovebox with the intent of hiding them from police.

1. As already noted, the appellant foreshadows two grounds of appeal. However, for the purposes of the bail application, the appellant relies solely on ground 2.[7] Ground 2 asserts that there has been a substantial miscarriage of justice due to 'flagrant incompetence' of counsel with respect to:

(a) his erroneous advice which induced and pressured the appellant's change of plea to guilty; and

(b) his pressuring of the appellant into pleading guilty, which was not attributable to a genuine consciousness of guilt.

1. In support of her grounds of appeal, the appellant will apply, at the hearing of her appeal, for leave to adduce her affidavit sworn 12 October 2022 as additional evidence in the appeal. She relies on that affidavit in support of her application for bail.

1. The appellant's affidavit may be summarised, for present purposes, as follows:

(a) In the weeks leading up to her trial, the appellant felt that her Legal Aid appointed lawyer was not competently representing her; she had only received limited communication with, and correspondence from, him.

(b) The appellant's counsel was in COVID-19 isolation from 17 May 2022 until 24 May 2022. Concerned that her interests were not being properly represented, the appellant wrote an email addressed directly to the judge on 18 May 2022, complaining that she did not feel that her lawyer was representing her.

(c) Attending a directions hearing by telephone on 18 May 2022, the appellant's counsel indicated to the court that he would be ready for the s 31A hearing on 24 May 2022 and for the jury trial starting the following day.

(d) The appellant arrived at the court on 24 May 2022, expecting the trial to proceed and prepared to give evidence in her defence. When she met her counsel in the interview room at around 11.00 am, her counsel told her that she would be found guilty at her trial because of the text messages the subject of the State's s 31A application, because her DNA was found on the cloth wrapped around the clipseal bag containing the drugs, and because of her sister's statement. The appellant protested her innocence.

(e) At this meeting, her counsel told her that if she pleaded guilty, she should get a suspended sentence, but if she went to trial, she would go to jail for 5 years. As a result, the appellant was shocked, panic‑stricken, distressed, crying and shaking uncontrollably.

(f) The appellant's counsel told the appellant that she had only 10 minutes to think about her plea, rejecting her request for more time to consider the position.

(g) The appellant went and spoke to her friend, Mr David Stanford. The two of them went back to the interview room to see the appellant's counsel. The appellant's counsel interrupted her protestations of innocence, reiterating that the appellant would be found guilty and would be imprisoned for 5 years if she proceeded with the trial, but that there was a very good chance of a suspended sentence if she pleaded guilty.

(h) The appellant then says in her affidavit:[8]

I changed my plea to guilty, relying on his advice that I would be granted a suspended sentence or a non‑custodial order allowing me to return to my family and continue giving my mother and children full‑time care as before. I relied on his advice in this regard even though I still believed I was innocent and wanted to maintain a plea of not guilty.

(i) The appellant says that her counsel gave her advice that was wrong in a number of respects and failed to follow her instructions. The appellant points to evidence in her defence, including that her DNA on the clipseal bag of drugs found in her sister's bra could have resulted from her sister borrowing her bra; and that the text messages found on her phone could have been sent by her sister, who often borrowed her phone, or were otherwise explicable. Specifically, the appellant says that the references in the text messages to milk, bread, hamburgers and cool drinks are not drug codes, but are innocent words used by her as she used to buy bulk foods because there were up to 10 people living with her at different times. As a result, she would order bulk milk of nine litres at a time and 10 large 1.2 litre bottles of cool drinks. She also had many hamburgers frozen in the freezer.[9]

1. The appellant submits that she has a strong appeal against conviction, such that it is likely that the appeal will be allowed and a retrial ordered.[10]
2. The appellant submits that she was induced by her counsel and pressured by him to change her plea to guilty only 20 minutes before the start of the trial, in circumstances where she had maintained a plea of not guilty for two years in the lead‑up to it. She submits that her plea of guilty was based on, and relied on, the erroneous advice of her counsel that by pleading guilty she would get a suspended sentence. She submits that she pleaded guilty while believing that she was still innocent, causing a miscarriage of justice in that she was deprived of the opportunity of being acquitted by a jury.
3. The appellant also points to the fact that she is the full‑time carer for her seriously invalid mother and for five children, three of whom have severe autism and one of whom is legally blind.

1. The principles relating to the grant of bail pending the determination of an appeal are well established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail, having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act: see cl 4A of pt C sch 1 of the Bail Act.
2. I adopt the following observations of Buss P in Serukai v The State of Western Australia:[11]

The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown.

In Peters v The State of Western Australia, McLure P observed, in the context of an appeal against conviction:

It is sufficient for present purposes to adopt the formulation relied upon, which is that the appeal is strongly arguable. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. That formulation, like others, is predicated on the notion that the prospect of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by having been kept in custody on an unsound conviction: Fermanis v The State of Western Australia [2005] WASCA 212 [15].

1. Thus, in the present case, the primary issue is whether the appellant has demonstrated a strongly arguable case on appeal that sustains the grant of bail pending the determination of the appeal.

1. A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence.[12]
2. A person may plead guilty for reasons which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner v The Queen, a person may plead guilty for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his or her family or friends; or in the hope of obtaining a more lenient sentence than he or she would receive if convicted after a plea of not guilty.[13] The entry of a plea of guilty for reasons such as these nevertheless constitutes an admission of all of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred.[14]
3. An appellant who appeals against a conviction following a plea of guilty faces a considerable hurdle in demonstrating a miscarriage of justice. In Vella v The State of Western Australia,[15] Steytler P (with whom Wheeler and Buss JJA agreed) said as follows:

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: ... 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: ... However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: ... (references omitted)

1. The appellant's case does not come within any of the three well‑recognised categories of cases to which Steytler P referred. Of course, as his Honour observed, those categories are not exhaustive: see, by way of example, Gibson v The State of Western Australia.[16]
2. As the above principles demonstrate, and as has been observed in this court,[17] demonstration by an appellant who pleaded guilty that they were in fact not guilty of the offence does not of itself demonstrate a miscarriage of justice arising from the conviction. All the more so, no miscarriage is established by demonstrating that the appellant has lost a chance of an acquittal.
3. An accused person who does not believe in their guilt may choose to plead guilty in the hope of obtaining a better outcome on sentence than would be expected in the event of conviction after a trial. A plea entered based upon legal advice to that effect does not give rise to a miscarriage of justice.[18]
4. It is clear that the appellant's grounds of appeal rely entirely on acceptance of her evidence in the affidavit she seeks to adduce as additional evidence in the appeal. At this stage, that evidence is, of course, untested by cross‑examination. Nevertheless, it is apparent that the respondent will take issue with the reliability of material aspects of the appellant's affidavit. In that regard, the respondent points to the matters recorded in the appellant's pre‑sentence report as set out at [25] above, together with the fact that the appellant did not take steps to assert her innocence at any time in the two months between the entry of the plea and when she was sentenced.
5. Moreover, if the appellant's evidence is accepted in its entirety, there will remain an issue between the parties as to whether the circumstances of the plea recounted by the appellant amount to a miscarriage of justice.
6. At the stage of a bail application, the court's views as to the apparent merits of the appeal are necessarily preliminary in nature. In the circumstances, I consider it appropriate to state my views in a conclusionary fashion, without elaboration.
7. As already noted, in order to demonstrate exceptional reasons for the grant of bail pending appeal, it is not enough for an appellant to establish that they have a reasonably arguable case. Based on my evaluation of the material at this stage, I am not persuaded that the appellant's appeal has strong prospects of succeeding sufficient to sustain the grant of bail.
8. For these reasons, I would dismiss the appellant's application for bail pending appeal.

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

[8] Affidavit of Leann Shepherd 12 October 2022 [41].

[9] Affidavit of Leann Shepherd 12 October 2022 [60(e)].

[11] Serukai v The State of Western Australia [2020] WASCA 127 [13] ‑ [14].

[12] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141; Lawson v The State of Western Australia [2018] WASCA 204 [17].

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

[16] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199.

[18] MMC v The State of Western Australia [2018] WASCA 52 [69].