Court of Appeal (WA)|2008-09-26|Before: Mr P, Miller JA, Steytler P

THE STATE OF WESTERN AUSTRALIA -v- WYNNE [2008] WASCA 195 (26 September 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- WYNNE [2008] WASCA 195

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Possession of methylamphetamine with intent to sell or supply - 27.3 g of 21% purity - Respondent courier for her husband - Respondent knowing that her husband was a drug dealer - Sentence of 12 months' imprisonment suspended for 2 years - Whether manifestly inadequate

Criminal law - Prosecution appeal - Possession of methylamphetamine with intent to sell or supply - Whether sentence of 12 months' imprisonment suspended for 2 years manifestly inadequate - Principles to be applied

2 MILLER JA: The respondent was charged on indictment that on 6 June 2007 at Albany she had in her possession a prohibited drug, namely, methylamphetamine with intent to sell or supply it to another.

3 On 18 February 2008, the respondent pleaded guilty to this offence in the District Court of Western Australia. An issue arose which required a trial of issues, and the matter came back before the court on 13 March 2008.

4 Midway through the trial of issues on 13 March 2008, the respondent instructed her counsel that she would accept the prosecution's statement of facts and it became no longer necessary to try the issue. The question had been whether the respondent had travelled from Albany to Perth for the purpose of receiving drugs.

5 Submissions were then put to the sentencing judge, at the conclusion of which the sentencing judge determined that the respondent should be sentenced to imprisonment for 12 months, suspended for a period of 2 years.

6 On 23 June 2008, the appellant was given leave to appeal the inadequacy of the sentence imposed by the sentencing judge. Leave was granted on the following four grounds:

The learned sentencing Judge erred in law in imposing a sentence that was manifestly inadequate, with respect to both the length of the term of imprisonment and the suspension thereof. The sentence imposed:

(a) failed to adequately reflect the serious nature of the offences, in particular having regard to:

(i) The quantity of the drugs involved (27.3 grams);

(ii) The purity of the drugs involved (21% methylamphetamine content);

(iii) The Respondent's role as a 'courier' and her intention to deliver those drugs to her husband; and

(iv) The Respondent's knowledge that her husband was running a drug dealing business in a regional

area, namely Albany and surrounds, and that the drugs were to be accordingly distributed for profit.

(b) failed to adequately reflect the need for general deterrence in a case involving a near traffickable [sic] quantity of methylamphetamine.

The learned sentencing Judge erred in placing undue emphasis on factors personal to the Respondent and insufficient emphasis on the seriousness of the offences as revealed by the objective and admitted facts.
The learned sentencing Judge erred in fact in categorising the Respondent's conduct as at the bottom of the range of criminality for offences of this nature.
The learned sentencing Judge erred in fact in finding that the Respondent would not receive any personal gain from the offence.

7 The facts were stated by the prosecutor at the hearing on 18 February 2008. They revealed that, at about 6.50 pm, on 6 June 2007, Albany police who were conducting random breath testing on Albany Highway, Albany, stopped the respondent's Holden Commodore travelling south towards Albany. The respondent was informed that she and the vehicle were going to be searched. She voluntarily produced a bag containing 27.39 g of methylamphetamine. This was hidden in her bra. She had $1,685 in cash on her. Both items were seized.

8 The prosecutor described the interception of the respondent in the following terms:

Essentially what is said is that this is a case of the accused Ms Wynne going to Perth and being a courier to get drugs, and that the police operation was arranged and she was picked up when she came back to Albany, having been by motor vehicle to Perth, and the state says that it was a conscious arrangement between her and her husband.

Her husband is also charged, and in addition to that, there's a charge against the supplier, named Dawson.

9 The prosecution case was that the respondent's husband had made arrangements with a co-accused, Ms Dawson, to purchase methylamphetamine and had arranged for the respondent to travel to Perth, and to meet Ms Dawson at a previously arranged location where Ms Dawson would hand over the drugs. The price had been agreed at $7,500. The methylamphetamine was supplied to the respondent and she was returning to Albany when apprehended.

10 The respondent was described as a courier who 'went along with her husband, facilitated the bringing of methylamphetamine from Perth to Albany in order for it to be sold in the Albany region'.

11 The respondent admitted the essential facts of the case. Her counsel said that Ms Dawson, the supplier of the drugs, was a supplier to the respondent's husband and others. It was said that Ms Dawson was having an extramarital affair with the respondent's husband and it was initially claimed that the respondent had gone to Perth to confront her, leading to a fight between them. Later, it was conceded that the trip to Perth was for the purpose of obtaining drugs, but it was still contended that there had been a confrontation as well.

12 Counsel for the respondent said that the respondent's husband had in excess of 50 drug charges to face. He was unsure how many charges Ms Dawson was facing.

13 Matters personal to the respondent were put before the sentencing judge. She was 27 years of age and she and her husband had been married and together for something in excess of seven years. She had five children, two of whom were boys aged 10 and 8 years. They were by a previous relationship. Three children were by the marriage of the respondent to Mr Wynne, being a boy aged five, a girl aged two and a young infant four months of age. It was explained that the committal proceedings which led to the respondent's appearance before the sentencing judge had been delayed until after the respondent gave birth to the last child.

14 The respondent was born in Rockingham. Her parents separated when she was less than 2 years of age. The respondent was of Maori origin, her parents both having come from New Zealand. Her mother was said to be a heroin addict and most of the family were said to have been drug users. There were five brothers and all of them had been drug users in one way or another.

15 The respondent went to Cannington High School, which she left at the age of 14 years. She essentially ran away from home, taking her younger brother with her. She lived on the streets for about seven months and then returned home. It was said that she became the 'mother' to her various brothers because her own mother was dealing in and using drugs.

16 The respondent met the father of her two elder children when she was about 16 years of age. She had her first child when she was nearly 17 years of age and she was with the father for four or five years. It was said that he was exceptionally violent towards her.

17 The respondent ended her first relationship and took up with Mr Wynne. They were said to have met and married almost immediately and to have been together in Albany ever since. Mr Wynne came from a local family and had lived in Albany all his life. Counsel for the respondent said that she had struggled, but had raised her children well, her children went to school and the respondent kept a good house.

18 It was pleaded that if the respondent was imprisoned, there would be significant disruption to her children. Mr Wynne was said to be in gaol on remand and other extended family members would have to look after the children if the respondent was in prison. Counsel for the respondent submitted that any term of imprisonment could be suspended.

19 Further submissions were put by counsel for the respondent at the hearing on 13 March 2008, but much of what was said was a repetition of what had earlier been said.

20 Counsel did add that the offence committed by the respondent was an isolated one and as a consequence of coercive pressure from her husband to do what she did. It was conceded that the respondent knew what her husband was doing, but it was contended that relations between the respondent and her husband had frequently been violent. The respondent was anxious to maintain the relationship with her husband and wanted to have a stable household where she could bring up her children.

21 It was conceded that the respondent's actions in obtaining the methylamphetamine were voluntary, but counsel said:

Having said 'coerced' in the sense that he verbally does that and persuades her to do it, but she's the one who drove up and down the highway. He wasn't there standing over her or anything in that way, he was 400 kilometres away, so in that sense it is obviously a willed and voluntary act but the circumstances surrounding it I submit are something that your Honour can take into account.

22 Reference was made to the respondent's record. It was said to be a minor record, but in fact there were a number of prior convictions for drug-related offences. In March 2006, there were convictions for cultivating a prohibited plant, possessing a prohibited drug (cannabis) and possessing a smoking utensil. In July 2007, there were convictions for possessing a prohibited drug (cannabis), possessing a prohibited drug (not specified) and possessing a prohibited plant. There was also a conviction on that date for possessing stolen or unlawfully obtained property.

23 At the time the respondent committed the offence of possession of methylamphetamine with intent to sell or supply, she was on bail in relation to the offences for which she was convicted in the Albany Magistrates Court on 18 July 2007.

24 Transcripts of a number of telephone intercepts were put before the sentencing judge. A number of these feature the respondent. Where they do, the conversations reveal that the respondent well knew what she was doing when she went to Perth to obtain the methylamphetamine. The first intercept at 13:38:57 on 6 June 2007 sufficiently indicates the respondent's knowledge of what she was doing. Here, TBI is the respondent's husband and TBI1 is the respondent:

TBI Hello there.

TBI1 Hi.

TBI Hi.

TBI1 I'm in Kelmscott.

TBI Okay, I'll get her to give you a buzz now.

TBI1 Hurry up. My phone's flat.

TBI She's got it on her.

TBI1 Okay. What am I giving her?

TBI (indistinct) 8 or 7, one of the two.

TBI1 Okay.

TBI Okay see you.

TBI1 See you.

25 The transcript of a call at 13:41:06 on 6 June 2007 reveals that the respondent had been with her husband on prior occasions at the same location to which she was travelling for the purpose of drug dealing. The conversation was in the following terms (TBI is the respondent and TBI1 is her husband):

TBI Yeah.

TBI1 Go to that same spot we always go to you know.

TBI Yeah.

TBI1 That bottleo.

TBI Yeah.

TBI1 Okay 20 minutes.

TBI Yeah.

TBI1 By the time you get there she'll be there.

TBI Okay.

TBI1 Okay see you.

TBI See you.

TBI1 See you.

26 There are numerous transcribed telephone intercepts which implicate the respondent in clear knowledge of what she was doing. For example, at 14:13:13 on 6 June 2007, there is reference by the respondent to 'seven and a half', which is code for $7,500. That was the amount being paid for the drugs.

27 At 19:37:53 on 6 June 2007, the respondent spoke with her husband from the Albany police station. She told him that she was in trouble and that the police had 'found stuff', which was 'stuff I shouldn't have had I think'. She described herself as being in big trouble, which was equated with 'Glenis' trouble'. Glenis was an associate who was sentenced to imprisonment for 18 months for a drug offence.

28 At 22:10:01 on 6 June 2007, the respondent (TBI1) spoke to an unidentified female, telling her that she had been caught with 27.9 g. She discussed with her friend how their friend Glenis had got 18 months 'for the same bloody thing' and it appears that the respondent questioned 'how many kids' Glenis had. I say 'appears' because there appears to be some confusion in the transcript between TBI and TBI1.

29 The sentencing judge delivered what can only be described as very idiosyncratic observations when imposing sentence. The comments are unstructured, take into account irrelevant matters, and contain a number of clear errors.

30 The sentencing judge began by reciting the facts of the case and the matters personal to the respondent. I have already made sufficient reference to these.

31 The sentencing judge found that the respondent came from a family where drugs were very significant. He made passing reference to the fact that the respondent's husband's father was James Krakouer 'a well known former footballer who served an extremely heavy sentence imposed in 1999 for bringing a very large quantity of amphetamines to Victoria', but at the same time acknowledged that this had no relevance to the matters, except to the extent that the respondent must have known how severely the law regarded drug offences.

32 The sentencing judge found that the respondent had been prevailed upon by her husband to drive from Albany to Perth to collect the methylamphetamine from a wholesaler and bring them back to Albany for the husband. He said, however, that he was not suggesting that the respondent's husband had forced her.

33 The sentencing judge observed that the trip to Perth (which he said 'perhaps wryly [may] be called a business trip') was one which the respondent's husband usually undertook himself, but on this occasion the respondent had made the trip. His Honour said that there was no evidence of any particular reason for this, but at the same time his Honour appears to have taken some account of the 'suggestion' that the respondent had gone to take the opportunity to confront the Perth wholesaler, who was a woman who had allegedly slept with the respondent's husband. His Honour concluded that, whether that was so or not, he had no doubt that the husband's request of the respondent to make the trip was one which would have been difficult for her to decline.

34 The sentencing judge took account of the fact that there was no evidence that the respondent was to receive any personal gain. He noted, however, that the respondent was not a user. His Honour found that the respondent had not provided a 'unique, essential or specialised service by being the courier' because the husband could have done it himself. His Honour said:

But as I say that, it's not as if you performed a service that nobody else could. As I say, it involved driving a motor vehicle up and down, Perth to Albany to Perth in a day and it seems to me that really, and I'm not saying that this doesn't matter, I'm not seeking to trivialise this but from all the circumstances it seems to me that you were a wife doing her husband's bidding for no reward.

35 The sentencing judge then made a most unusual observation. He said:

No suggestion of you getting any drugs. You don't use drugs. No suggestion of you getting anything other than pleasing him. That seems to me to accurately characterise the criminality in this matter, and I think as a result of that - and I must say I'm also influenced in a nonspecific way by what I can only describe as the look in your eye, but it seems to me that you were a courier at the [sic] of the range of criminality - breaking the law knowingly but at the bottom end of criminality.

36 It is not clear what the sentencing judge was referring to when he spoke of the 'look in [the respondent's] eye'. It was a most inappropriate basis upon which to impose sentence. Further, the respondent could not possibly be described as a courier at the 'bottom end of criminality'. On any view of it, the offence she committed was well above the bottom end of criminality.

37 The sentencing judge appreciated that the methylamphetamine would be distributed in Albany, but his Honour made another idiosyncratic observation to the following effect:

This material was to go to Albany, where some of the users - not all of them; some people don't have trouble with their behaviour and they use and they keep a little habit going, bubbling along, but there are others who create havoc and chaos wherever they go on amphetamines.

38 The sentencing judge took the view that the facts alone and the circumstances (my emphasis) called for a 'moderate to light sentence'. In my opinion, this again was a clear error. In no sense could the facts and circumstances of the case have called for a moderate to light sentence. The appropriate range of sentences for possession with intent to sell or supply of smaller quantities of methylamphetamine (between 3 and 65 g) was reviewed by me in Bosworth v The State of Western Australia [2007] WASCA 144 [41], where I concluded (after analysis of a number of case between 1996 and 2006) that sentences in cases generally involving pleas of guilty and after application of the transitional provisions ranged between 2 and 4 years' imprisonment, but sometimes more.

39 The sentencing judge then embarked upon another idiosyncratic observation to the following effect:

This is not the sentence I am imposing but I want to reveal my thoughts about the matter at this stage, and I think for the extent of criminality displayed in the circumstances and materials provided to me in the case, something like a sentence of 24 months' imprisonment would be appropriate. Upon the plea of guilty there would be a discount of, say, 25 per cent, making that 18 months, and then under the new sentencing regime, where I'm required to discount it again by a third, that would result in a sentence of something like - or 12 months' imprisonment with parole.

40 The sentencing judge made reference to the respondent's personal circumstances and, in particular, to the position of her children. He observed that they were presently being looked after by a number of friends and relatives. This was because the respondent was at that time in custody.

41 The sentencing judge understood that only in exceptional circumstances would the position of dependent children be a relevant factor to take into account in sentencing the respondent. His Honour appreciated that 'this situation is not perhaps quite like that', noting that the youngest child was with the respondent, although it was a 'limited arrangement and subject to change'.

I think the combination of the modest, if you like, criminality in this matter combined with your personal circumstances is such that they can enable me to suspend and I think that any thinking members of the community who are able to follow the line of logic about all of this would not feel any sense of grievance about that. I don't think the community would demand that a small fry like you in the scheme of this matter for what you did that day should be in imprisoned for the first time in your life.

You have some prior record; you were on bail and I take those into account but I don't think any of those matters are critical in the scheme of things. I should also refer to the case of Stewart, 72 A Crim R, and Burns, 71 A Crim R.

I'm just simply seeking to say that I have read around a bit about it during the period since we rose this morning and I would perhaps leave it with the parting shot: I'm not aware of this issue having been considered since suspended sentences became available. Maybe I'm wrong, but anyway I haven't found any or been taken to any.

So in a nutshell then, you will be sentenced to 12 months' imprisonment for your conduct in relation to this matter. For the circumstances I have tried to explain, however, I will suspend that sentence for a period of two years.

43 There are at least two things to be said about this passage. The first is that the respondent could not be described as a 'small fry' in relation to the offence she had committed. The second is that it was an important factor that the respondent was on bail at the time she committed the offence.

44 The references to Burns (1994) 71 A Crim R 450 and Stewart (1994) 72 A Crim R 17 are unexplained. Burns was a case in which the appellant had been convicted of attempting to obtain possession of 1,049 g of pure cocaine and on one count of possessing 23.9 g of the same substance. The cocaine had been imported into Australia and exceeded the trafficable quantity of 2 g. It was described as a carefully planned course of conduct of a very serious kind. The applicant was 39 years of age and had two young children aged four and 10. After her younger child was born, the applicant suffered depression and emotional problems. A psychiatric report expressed the view that imprisonment and separation of her from her children were likely to cause her to suffer acute reactive depression of suicidal intensity, accompanied by acute tension, anorexia and weight loss.

45 The court (Pidgeon, Anderson and Owen JJ) granted leave to appeal against sentence, but dismissed the appeal. Anderson J said (at 454) that he was not persuaded that the case was one in which there would be any special hardship imposed upon the applicant by imprisonment. His Honour said:

It may be accepted that she is emotionally fragile, given to bouts of depression, anxiety and worry. It may be accepted that her children are young and the thought of being parted from them for an extended period causes her much anxiety and unhappiness. But it is difficult to say that these features of the case make it a special case. The mere fact that there are young dependants is not in itself an exceptional circumstance, quite obviously. I do not think there is anything in the material presented to the sentencing Judge or to which we have been referred which would suggest that anything other than the usual amount of disruption, anxiety and concern will be experienced within this family unit by the prison sentence imposed on the applicant. That is not to deny the existence of a degree of anguish. Neither is it to deny that the presence of young dependants is not a factor that must be taken into account in every case: Crimes Act s16A(2)(p). However, I think also that the Court cannot ignore that this was an offence involving premeditation and wilfulness and a persistent course of conduct of a very serious kind. The applicant must have known that she and her de facto husband, ie, the other 'parent', risked lengthy imprisonment should they be caught. Nevertheless, she involved herself in this criminal conduct and not only that, it was part of the plan that this large quantity of cocaine should be taken to her house and that the carrier of it, Vargas, should stay at her house where her children were residing. This was not a thoughtless, impulsive spur of the moment crime in which there was no time or opportunity to consider the consequences to the children should the parents be caught. Having regard for these features of the case, the Court must be less influenced by considerations of mercy towards the applicant than might otherwise have been the case. 454 - 455

46 Stewart was a case in which there was an application for leave to appeal against sentence by a mother of three children, who was three months pregnant at the time of sentencing. She had pleaded guilty to charges of possession of a quantity of cannabis (452 g) and possession of a quantity of cannabis resin (89.5 g), both of which were deemed to be with intent to sell or supply. Leave to appeal against sentence was allowed, but the appeal was dismissed by Franklyn and Owen JJ. Wallwork J would have allowed the appeal.

Generally, hardship caused to an offender's children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however, it depends on the gravity of the offence and the circumstances of the case. (21)

48 This ground contends that the sentencing judge erred in law in imposing a manifestly inadequate sentence in that his Honour failed to adequately reflect the serious nature of the offences and failed to adequately reflect the need for general deterrence.

49 These three grounds contend that the sentencing judge made specific error in (a) placing undue emphasis on factors personal to the respondent; (b) categorising the respondent's conduct as being at the bottom of the range of criminality for offences of this nature; and (c) concluding that she would not receive any personal gain from the offence.

50 It is perhaps appropriate to deal with grounds 2, 3 and 4 first.

51 In my opinion, there was clear error on the part of the sentencing judge in placing undue emphasis upon matters personal to the respondent. The passages that I have quoted make it clear that his Honour was very much influenced by matters personal to the respondent, so much so that he even spoke of a particular 'look in [her] eye'.

52 There is ample authority in this court that matters personal are of limited importance in cases of this nature. This has been recognised in a number of drug cases. In 1996, it was said by Anderson J in Bellissimo (1996) 84 A Crim R 465 at 469 that matters personal to an offender will often play a secondary role in the sentencing process in drug cases. Ten years later, in The State of Western Australia v Andela [2006] WASCA 77, McLure JA said:

[A]s a consequence of the significant weight given to deterrence, mitigating circumstances that are personal to the offender, such as age and good character, have correspondingly less weight than they might have in other cases: R v Marchesano [2000] WASCA 225; (2000) 116 A Crim R 237 at 243; R v Kezkiropoulos [2002] WASCA 352; (2002) 136 A Crim R 522 at [15] per Steytler J. [17]

53 I am of the opinion in the present case that the sentencing judge did place undue emphasis upon matters personal to the respondent and fell into error in so doing.

54 I have already mentioned that the offence committed by the respondent could not possibly be described as an offence at the bottom of the range of criminality. The sentencing judge actually used the term 'bottom end of criminality'. I need only refer again to Bosworth at [41] - [42] where a range of 2 to 4 years, and sometimes more, is demonstrated in a number of cases between 1996 and 2006, where possession with intent to sell or supply of between 3 g and 65 g of methylamphetamine has been the subject of the offence. As I pointed out at [41], most of the cases involved pleas of guilty. In some of the cases, possession of quantities of methylamphetamine similar to that possessed by the respondent in this case have brought sentences in excess of 2 years' imprisonment, with one sentence as high as 5 years' imprisonment. Under no circumstances, then, could the offence committed by the respondent be described as being at the bottom end of criminality.

55 The conclusion that the respondent would not receive any personal gain from the offence is the subject of the fourth ground of appeal. The sentencing judge said 'You were not to receive or there is no evidence that you were to receive any personal gain'. At the same time, his Honour noted that the respondent was not a user.

56 The argument advanced on behalf of the appellant is that there is no evidence to suggest that the respondent did not benefit from the husband's drug dealing activities, and therefore there was no basis upon which the sentencing judge could make a finding to the contrary. This is a rather negative way of advancing the contention contained in ground 4.

57 As a fact, there was no evidence that the respondent was to receive any personal gain herself. Of course, being married to a drug dealer, the family presumably benefited from the income that the respondent's husband gained from illicit drug dealing, and, in that sense, she was likely to have received an element of gain. To the extent that the sentencing judge overlooked this factor, there is substance in the fourth ground.

58 It seems to me that grounds 2, 3 and 4 have all been made out.

59 Ground 1 is the ground which contends that the sentence is manifestly inadequate, both as to length of term of imprisonment and as to suspension. I have already set out the particulars upon which reliance is placed. Essentially, they contend that the sentencing judge failed to adequately reflect the serious nature of the offence and failed to adequately reflect the need for general deterrence.

60 As I have already pointed out, the range of sentences that could have been expected in this case was between 2 and 4 years' imprisonment. That is well established by the analysis of cases contained in Bosworth at [41]. A sentence between 2 and 4 years' imprisonment would have been appropriate having regard to the plea of guilty of the respondent. Such a sentence would also reflect the need for general deterrence. The governing principles are those set out in Andela by McLure JA at [16] - [17]. Her Honour said:

... the major sentencing considerations for offences of trafficking in dangerous drugs of addiction, including amphetamines, are general and personal deterrence, the major objective being to stop people doing it: R v Bellissimo (1996) 84 A Crim R 465 at 471 per Anderson J. As stated by Anderson J in Bellissimo, and repeated some four years later in R v Ruvinovski [2000] WASCA 398; (2000) 116 A Crim 131 at 144, '[t]rafficking in amphetamines [including ecstasy] continues to be rife, continues to involve young, even very young, members of the community and continues to be destructive of families and to have tragic consequences for individuals. There remains a high level of community concern about it and rightly so'.

...

... save in exceptional cases, courts impose terms of immediate imprisonment for drug trafficking: see, for example, R v Lyon and Smith [2001] WASCA 120; (2001) 121 A Crim R 440; R v Brittain [2001] WASCA 117; (2001) 121 A Crim R 525; R v Darwell (1997) 94 A Crim R 35; Mishal v The Queen [2001] WASCA 328; Bellissimo (supra).

61 There may have been mitigating circumstances in the present case occasioned by the fact that the respondent was performing a task at the request (perhaps insistence) of her husband, but, at the same time, she was clearly well aware of what she was doing and well aware of the fact that her husband had previously been involved in extensive drug dealing. The transcript of the telephone intercepts reveals that the respondent knew where she was going to collect the drugs because she had been there on prior occasions with her husband.

62 One of the worst aspects of the case is that the respondent was bringing a substantial quantity of methylamphetamine from Perth to Albany, where she knew it would be distributed by her husband to people in the Albany area. The distribution would be for profit and would be to the potential destruction of numerous families (see Andela per McLure JA at [16]).

63 In my opinion, the sentence was manifestly inadequate and ground 1 is made out.

64 The court is required to resentence the respondent. At the hearing of the appeal, application was made on behalf of the respondent to adduce new evidence under s 41(4)(a) of the Criminal Appeals Act 2004 (WA). That section reads:

(4) The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) -

(a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard;

65 The new evidence which it was sought to adduce before the court consisted of an affidavit of the respondent, sworn 4 September 2008, supplemented by her oral evidence. In her affidavit, the respondent deposes that she is the mother of five children who now range in age between 10 years (eldest) to 10 months (youngest). She also cares for her 13-year-old brother. Her husband, James Wynne, is currently on remand awaiting sentence and the respondent is thus the sole carer for these six children.

66 The respondent deposes that three school aged children and her brother attend school in Albany. The respondent's mother is on the Methadone programme in Perth and travels between Perth and Albany, but does not spend any more than two weeks at a time in Albany. Her mother also cares for two children of her own and is not able to take care of the respondent's children for any length of time. The respondent says that she has no other family in Albany, as the rest of her family reside in Perth and none of those are capable of taking care of all six of her children. She says that if she is resentenced to a term of immediate imprisonment, her children will have to go into the care of the Department of Child Protection, which currently has an accommodation crisis. This would result in the children being put into separate residences.

67 The respondent also details co-operation which she offered to investigating police after she was sentenced. At the conclusion of the sentencing proceedings, she spoke to Detective Cunningham and made arrangements to see him. About two seeks after she was sentenced, she spoke to Detective Rivers and to him she made an offer of assistance, which she described 'as repentance for my crime'. She did not then know that the prosecution intended to appeal against her sentence. Later, she saw Detective Cunningham and Detective Rivers. The respondent says that the detectives had a person of particular interest that they wanted her to contact. She attempted to do so, but she was unable to make contact with this person as he was said to be no longer involved in the drug scene. She says that, between April 2008 and mid-May 2008, she tried to make contact with other people whom she believed to be heavily involved with the trade of drugs in the Albany area, but as time went on people became suspicious of her activity and stopped talking to her.

68 The respondent says that the police asked her to visit the home of the person they were interested in. The respondent says she was nervous about doing this, and she was unable to do so.

69 In her oral evidence, the respondent said that her children would be scattered 'back and forth' if she was sentenced to a term of imprisonment immediately. She said that she was prepared to co-operate with police and that the police had wanted her to get involved with one person, but when it 'came to the crunch' people had heard about her and (effectively) she was unable to do anything.

70 The respondent was cross-examined in relation to the arrangements she would make for persons to look after her children in the event that she was sentenced to immediate imprisonment. She said that the older children would have to find other places to live, but that if she could be placed at Boronia Prison, she might be able to have the youngest child with her.

71 The appellant also sought leave to rely upon evidence. That evidence was in the form of two affidavits. One was from Detective Mark Freeman Cunningham, sworn 4 September 2008, and the other was from William Frederick Bykerk, also sworn 4 September 2008. Detective Cunningham was called to give oral evidence in addition to the matters to which he had deposed.

72 In his affidavit, Detective Cunningham confirmed that, after the respondent had been sentenced, she requested the opportunity to speak with him. He confirmed also that Detective Rivers had spoken with the respondent. Subsequently, the respondent met with Detective Rivers and himself. She portrayed herself as being able to offer significant assistance to police, particularly with a specific drug target in the Albany region that the police had in mind. She indicated that she had a close relationship with this target and would be able to assist police.

73 Detective Cunningham says that at no time did the respondent state that she was offering to assist 'as repentance or by way of remorse', but her specific motivation which she did mention was that she was annoyed that she had been caught whilst others had not, and she wanted to get back at some of those people.

74 Detective Cunningham deposes to the fact that ultimately the respondent was unable to obtain any direct access to the target whom police wanted her to contact. She did not know his current address and any attempts to contact him were rebuffed. She appeared only to have direct contact with a different person who was at a level below that of the target. The detective concluded that the respondent could not be of any really useful assistance to police.

75 In his oral evidence, Detective Cunningham conceded that the respondent had genuinely wanted to help police when she was approached, but unfortunately she was unable to do so.

76 The affidavit of Mr Bykerk (Operational Policy Officer within the Prisons (Adult Custodial) Section of the Department of Corrective Services) sets out departmental policy in relation to prisoners and their children. In short, it appears in an ordinary prison children under 12 months of age can reside with their mother in a residential programme, but in a purpose-built minimum security facility, the age limit at which a child's residency ceases will generally be when the child turns 4 years of age.

77 The appellant and the respondent should each be given leave to adduce the new evidence to which I have referred and that evidence should be accepted as evidence on the hearing of the appeal. It is material to take into account in resentencing the respondent.

78 The first and important consideration in resentencing the respondent is that the offence she committed is very serious. Save in exceptional cases, terms of immediate imprisonment are imposed for offences of drug trafficking (Andela per McLure JA at [17]). The range within which the respondent's case falls is between 2 and 4 years' immediate imprisonment (Bosworth per Miller JA at [41] - [42]). The personal factors relevant to the respondent have less weight than they might have in other cases (Andela per McLure JA at [17]).

79 The most relevant personal factor in this case was the fact that the respondent, with her husband in prison, was the sole carer for her five children. She also cared for her brother. In the event that the appellant is sentenced to immediate imprisonment, the children will need to be cared for by others, and this will necessarily mean that the family is split. If the appellant, after being sentenced to immediate imprisonment, is moved to a minimum security institution, she would be entitled to apply to have the two youngest children with her.

80 It is only in exceptional cases that the court will take into account the probable effect that a sentence imposed upon an offender will have upon that person's family or dependants (S v The Queen [2003] WASCA 309 per Miller J at [21] et seq and cases cited therein).

81 The guiding principle is that ordinarily, hardship caused to an offender's children will not be a circumstance that is taken into account in the sentencing process. It may be taken into account when the degree of hardship that imprisonment will involve is exceptional, or where the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however, it depends on the gravity of the offence and the circumstances of the case (Stewart per Franklyn J at 21).

82 Thus, in S, the court 'drew back in mercy' and imposed a suspended term of imprisonment in circumstances in which a severely disadvantaged child of the appellant and her partner might otherwise be deprived of the care of both parents and such disruption of dual parental care would be a very substantial detriment to the child and even put him back to a level from which he might never recover (at [17] and [30]). On the other hand, in R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286, the respondent was considered by the Court of Criminal Appeal of New South Wales to have been sentenced too leniently when given a suspended sentence because she had a 4-year-old child who suffered from severe behavioural and emotional problems and separation of the child from the mother would be likely to cause trauma to the child and result in escalation of her distress and behavioural and emotional problems. The court considered that there had to be some form of actual imprisonment imposed upon the respondent, who was a customer service operator in Centrelink and over a period of nine months had defrauded the Commonwealth to the extent of $78,500 [25].

83 In my opinion, the present case is not one in which it could be said that the circumstances of the children were such that something other than an immediate term of imprisonment was appropriate.

84 There is, however, the question of co-operation to be considered. At the time the sentencing judge imposed sentence, the respondent had not taken any steps to co-operate. It was only after she was sentenced that she approached detectives indicating that she was prepare to co-operate with them to implicate a particular target in drug dealing. As it happened, the attempts to implicate this target came to nothing because it became apparent that the respondent had no direct access to the person concerned.

85 It can be said in favour of the respondent that she did offer to assist and she was asked by detectives to endeavour to implicate a nominated target. On the other hand, the proposed assistance appears never likely to have come to anything as is revealed from the oral testimony of Detective Cunningham to the following effect:

From the beginning, we explained to her that our only interest was that particular target. Any other information that she had for us was of no importance to us really. She led us to believe that she could access that target readily. When it came to the point where we asked her to access that target, she couldn't do that. I and others had some doubt whether she could. We asked her to come to the police station which she did and in front of us try and make contact. It was quite plain to us then that she didn't have direct access to that person.

86 The extent of the respondent's co-operation in this case is thus extremely limited. She did indicate a desire to co-operate with investigating police, but it appears that she did not, in fact, have the capacity to assist police in relation to their target. Any offered co-operation in relation to smaller people was of no real value to the detectives' operation. The respondent had only direct contact with a person who was at a level below that of their target (affidavit of Mark Freeman Cunningham, par 15).

87 Nevertheless, Detective Cunningham in his oral evidence was frank that the respondent did offer to assist and did undertake a particular task at the request of the detectives, although unable to perform that task. It is relevant, however, that Detective Cunningham said that, at no point, did the respondent say to either Detective Cunningham or his colleague that her motivation for coming forward and offering assistance was by way of repentance for her crime.

88 The respondent had, of course, pleaded guilty to the offence with which she was charged. A plea of guilty can be indicative of remorse, acceptance of responsibility and facilitation of the course of justice (Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339). But in the present case, it would appear that the respondent's plea was absent remorse.

89 The respondent's attitude seems to have been that she was annoyed that she was caught, whereas other drug dealers offending in the Albany area were not caught. This is apparent from the respondent's oral evidence in which she said:

The first time I spoke with - saw Rivers, I told him the situation, that I could help him with something. He asked me sort of why and I said because 'I don't like them, I hate their guts.' I said that they 'walk around freely, shaking people's hands and everyone has this respect for them and yet me I walk around and I'm judged every day, my kids are judged every day.' I said, 'I hate them and I want to get them back for it'; and I hate them. I do, I hate them.

90 There is no doubt that substantial sentence discounts can be given to offenders who co-operate with authorities. In The State of Western Australia v Tran [2008] WASCA 183, I reviewed the relevant principles at [75] - [77]:

There is, of course, no tariff for discounts which result from co-operation with authorities. Substantial discounts can be given: see Foster and D'Anna (1992) 59 A Crim R 14; Duffy (1996) 85 A Crim R 456. The principle upon which such discounts are given was expressed by Seaman J in Foster and D'Anna as follows:

High public policy dictates that offenders who give police assistance of a high order are to be rewarded by a very substantial discount from their sentence: McGookin and Robinson (1986) 20 A Crim R 438. A significant discount must be given and be seen to be given for significant assistance: Cartwright (1989) 17 NSWLR 243 at 250. (21 - 22)

In Bazzi v The State of Western Australia [2007] WASCA 195, Wheeler JA (Owen and Miller JJA concurring) said:

The correct approach to a discount for co-operation with the authorities has often been canvassed. There is no 'tariff' for such a discount, and the discount may, in appropriate circumstances, be very small, or may be as much as 50%, or even more (Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349, [52] (Templeman J), [111] - [112] (Roberts-Smith J, with whom Steytler J agreed). [26]

In A Child v The State of Western Australia [2007] WASCA 285, Wheeler and McLure JJA restated the principles relevant to a discount for co-operation with authorities. Their Honours said:

The principles governing the discount for co-operation with authorities have been often stated. A substantial discount is given to an offender who gives useful information or assistance to law enforcement authorities, irrespective of whether that demonstrates remorse or contrition. Where the information or assistance does demonstrate genuine remorse or contrition (as, in our view, it does here), the discount should be greater. The more potentially useful the information is to authorities, the greater should be the discount. Finally, any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of co-operation should be taken into account: Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349, [118] (Roberts-Smith J); Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313, [34] (McKechnie J).

The considerations mentioned above reflect two underlying principles. One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted.

The discount given to offenders should not be laid down as a standard percentage, but depends upon the circumstances of the individual case: R v Lopez (Unreported, WASCA, Library No 930431, 13 August 1993). In that case, it should be noted that Rowland J cited Perrier & Richardson [1991] VicRp 38; [1991] 1 VR 717; (1990) 59 A Crim R 164 as authority for the proposition that, in some circumstances, the discount may be as high as two-thirds deducted from the head sentence. [11] - [13]

91 As can be seen from the judgment of Wheeler and McLure JJA in A Child v The State of Western Australia [2007] WASCA 285, a substantial discount is given to an offender who gives useful information or assistance (my emphasis) to law enforcement authorities, irrespective of whether that demonstrates remorse or contrition. However, where genuine remorse or contrition is demonstrated, the discount may be increased.

92 Discounts for co-operation will still be given in cases in which information and assistance is given to investigating authorities, but where it proves to be of no assistance. This was made clear in Barany v The Queen [2000] WASCA 240; (2000) 114 A Crim R 426, where Parker J (with whom Kennedy ACJ and Wallwork J agreed) said at [23]:

In my view this brief reference to authority is enough to confirm that regard may properly be had for sentencing purposes, inter alia, to the value and benefit to the investigating authorities of the information and assistance provided by an accused in cases such as this, but that is only one of a number of relevant considerations. Even where the information and assistance in fact proves to be of no assistance, the provision of that assistance, at least if fully and frankly provided, and also the degree of risk arising to the accused because of the assistance provided, will also be relevant considerations.

93 Even where an offender's motive for giving assistance is 'self-interest', as distinct from genuine remorse or contrition, a reward may still be given for providing assistance. It was so held in R v Cartwright (1989) 17 NSWLR 243, where Hunt and Badgery-Parker JJ said at 252:

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive might have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive.

94 In the present case, it is clear that the respondent should be given credit for her offer of assistance to the police. The discount is reduced because it was not a remorseful offer indicating firm steps taken by the respondent towards her rehabilitation. But on the other hand, it was not a self-interested offer of assistance. It was made after the respondent was sentenced and it was genuine, although not ultimately effective.

95 In all the circumstances, and taking into account the aggravating factor of the respondent having breached bail by reason of the commission of the offence (see Pop v The Queen [2000] WASCA 283 per McKechnie J at [72] - [90]), I would resentence the respondent to a term of immediate imprisonment of 16 months. This is a sentence that takes account of the transitional provisions and the fact that this is a prosecution appeal. The principles relevant to prosecution appeals are set out in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 340 - 341 per Kirby J in the following terms:

For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' ... of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' ... such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced ... The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences ... This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences.

96 As I pointed out in The State of Western Australia v Porter [2008] WASCA 154 at [21]:

In this court they were recently re-stated by Steytler P in Collier [18] - [23]. These principles are applicable to the present appeal, because the amendment to s 41(4)(b) of the Criminal Appeals Act 2004 (WA), which has done away with the 'double jeopardy' principle and its consequence that when re-sentencing an offender on a prosecution appeal a sentence will ordinarily be less than the sentence which should have been imposed at first instance is not retrospective in operation. The section applies only to cases in which the sentence appealed dates after 27 April

2008. See The State of Western Australia v Richards [2008] WASCA 134.

In the present case, the appeal was commenced by notice filed 31 March 2008, and so the provisions of s 41(4)(b) of the Criminal Appeals Act 2004 are inapplicable to it.

97 Because the respondent has spent 25 days in custody, I would reduce the sentence by a further month, to one of 15 months' immediate imprisonment.

98 In my opinion, the appeal should be allowed on all grounds. The sentence imposed upon the respondent should be quashed and in lieu thereof a sentence of 15 months' immediate imprisonment should be imposed, that sentence to commence on the date upon which judgment is delivered. There will be an order that the respondent be eligible for parole.

99 MURRAY AJA: In this case I have had the advantage of reading in draft the reasons for decision published by Miller JA. I agree with them.

100 I too would give leave to adduce the additional evidence, both orally and by affidavit, which we received provisionally on the hearing of the appeal.

101 I agree that in the final result the appeal should be allowed, the sentence imposed by the District Court should be set aside, and in lieu thereof this court should impose a sentence of 15 months imprisonment, with eligibility for parole, to be immediately served.

THE STATE OF WESTERN AUSTRALIA -v- WYNNE [2008] WASCA 195 (26 September 2008)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (140 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- WYNNE [2008] WASCA 195 (26 September 2008)

Legislation Cited (1)

Cases Cited (4)