1 MARTIN CJ: At the hearing of this appeal I joined with the other members of the Court in refusing the appellant's application for an adjournment. I have had the opportunity to read in draft the reasons to be published by Pullin JA for refusing that adjournment and agree with those reasons. I am also of the opinion that the appellant's tender of his affidavit pursuant to s 40 of the Criminal Appeals Act 2004 should be refused for the reasons given by Pullin JA. I am also of the opinion that the appeal must be dismissed for the reasons given by Pullin JA, with which I agree.

2 McLURE JA: I have had the advantage of reading the judgment of Pullin JA. I agree with him that the appellant's appeal against sentence should be dismissed. I would also refuse the appellant's application to adduce further evidence and amend his grounds of appeal.

3 The appellant was convicted after trial of one count of selling or supplying methylamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (being 222.4 grams at 53 - 65 per cent purity) and one count of possession of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act (being 11.4 grams at 76 per cent purity).

4 On 21 August 2005, the appellant was sentenced to 8 years' imprisonment on count 1 and 3 years' imprisonment on count 2. The sentences were ordered to be served concurrently. Thus, the appellant received a total sentence of 8 years which converts to a sentence of 12 years under the sentencing regime that applied before the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

5 As a result of the convictions, the appellant was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act. As a consequence, all the property that the appellant owned or effectively controlled at the time the declaration was made was confiscated under s 8 of the Criminal Property Confiscation Act 2000 (WA) ("Confiscation Act"). The appellant sought leave to adduce in evidence an affidavit sworn by him on 12 June 2006. The substance of his affidavit is that the sum of $101,549 ("the property"), which was confiscated under s 8 of the Confiscation Act, was lawfully acquired (the "further evidence"). In appropriate circumstances, the confiscation of lawfully acquired property may be a mitigating factor in sentencing: Sinagra-Brisca v The Queen [2004] WASCA 68; Macri v The State of Western Australia [2006] WASCA 63.

6 At the commencement of the hearing, the appellant applied to adjourn the appeal. The Court dismissed the application. The application was made on the basis of an incorrect factual assumption that a relevant outstanding matter remained for determination in proceedings under the Confiscation Act. In fact, there were no outstanding matters of any nature affecting the confiscation of the property either at the time of sentencing or at the time of the hearing of the appeal. The appellant's adjournment application was misconceived. Further, I agree with Pullin JA that, ordinarily, pending proceedings under the Confiscation Act would not justify an adjournment of sentencing proceedings. The offender would be well placed to adduce evidence as to the property he owned or controlled and whether it was lawfully acquired.

7 As the appellant's affidavit was served at a very late stage, the respondent was not in a position to determine its position on the appellant's assertion that the property was lawfully acquired. However, that question does not arise for determination unless the appellant is given leave to adduce the further evidence and to amend his grounds of appeal. The proposed new ground of appeal is in terms that:

"By reason of fresh or new evidence that has arisen since the date of sentence, each of the sentences imposed on the appellant ought to be set aside and the appellant resentenced."

8 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.

9 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 v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 676 per Mason J.

10 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.

11 A claim that a sentence is manifestly excessive depends on an inference of error arising from the sentence imposed. It does not depend on express error in a sentencing judge's reasons: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324 - 325. The fact that a sentencing judge expressly had regard to all relevant considerations does not answer the question whether a sentence is manifestly excessive. To determine that question it is necessary to view the sentence in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.

12 Both offences committed by the appellant are very serious. They attract a maximum penalty of 25 years' imprisonment. The circumstances of the appellant's offences are at the high end of the scale of seriousness. The sentencing Judge accepted the evidence of a witness at trial that the purity of methylamphetamine at the time of manufacture can be 80 per cent so that the drugs the subject of the convictions were close to the source of manufacture. It follows that the appellant was close to the source of manufacture. These matters materially impact on the appellant's level of culpability.

13 The appellant was 36 years old when he was sentenced. He broke his neck in a motor cycle accident in 1996 and began using methylamphetamine because of painful symptoms associated with the accident. The sentencing Judge accepted that since this offending, the appellant had taken steps to wean himself off methylamphetamine, apparently with some success. I infer the sentencing Judge accepted that the appellant was addicted to drugs. However, he did not make a finding that the offences were committed in order to fund that addiction. Indeed, the quantity and purity of the drugs contradict such a causal connection between the appellant's addiction and his drug trafficking. The appellant had a prior record of offending (including convictions for stealing, damage, being on premises without lawful excuse and assault occasioning bodily harm). He had one prior drug-related conviction which was for possession of a smoking implement in 1990.

14 The remaining question is whether, having regard to all relevant factors, the total sentence of 8 years is outside the range of sentences customarily imposed for offences of this type. An important variable when considering sentences imposed in other cases is the significant discount given to a fast track plea of guilty. Further, for offences of this type significant weight is given to general and personal deterrence; mitigating circumstances that are personal to the offender carry less weight than they otherwise might: The State of Western Australia v Andela [2006] WASCA 77. Having regard to relevant factual variations, the sentence of 8 years (12 years under the former sentencing regime) is within the customary sentencing range: see Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; Cameron v The Queen [2000] WASCA 286; Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19; Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130; Macri v The State of Western Australia [2006] WASCA 63.

15 The appellant was dealing in a significant quantity of high purity drugs and was close to the source of manufacture. The potential for high financial returns for drug trafficking at that level of the distribution chain must be appropriately counter-balanced by significant deterrent sentences following detection and conviction. Assuming the property was lawfully acquired, its confiscation would not cause me to conclude that a different total sentence should have been imposed.

16 PULLIN JA: This is an appeal against sentence. The appellant was convicted of the following offences:

"1. On 18 May 2001 at Myaree [the appellant] sold or supplied a prohibited drug, namely methylamphetamine, to another contrary to section 6(1)(c) of the Misuse of Drugs Act;

2. And further that on 18 May 2001 at Kardinya [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another contrary to section 6(1)(a) of the Misuse of Drugs Act."

17 The facts were in relation to count 1, that the appellant sold or supplied to a Darren Benter, 222.4 grams of high quality methylamphetamine of 53 to 65 per cent purity. A search by police revealed accoutrements of drug dealing, namely money, scales, bags and a substance usable as a cutting agent.

18 The facts in relation to the second count were that the appellant had in his possession 11.4 grams of methylamphetamine of 76 per cent purity when a search was conducted by the police. He attempted to persuade the jury that this quantity was for his own use but the jury, by convicting him, were not so persuaded.

19 An expert witness at the trial said that purity at manufacture of methylamphetamine is about 80 per cent, so a purity of 76 per cent means that the appellant was very close to the source of manufacture and therefore high up in the distribution network.

20 The appellant was sentenced to 8 years' imprisonment on count 1. On count 2 he was sentenced to 3 years' imprisonment concurrent with the sentence on count 1. He was made eligible for parole.

Personal and other factors taken into account by the sentencing Judge

21 His Honour, in his sentencing remarks, found that the appellant was 36 years old. He was part of a large Portuguese family. When he was 6 years old his father died in a boating accident. His mother brought up the family. Because English was the appellant's second language, he did not do well at school and as a result left school early. He has no formal qualifications and worked mainly in labouring jobs. This was the case until he broke his neck in a motor cycle accident in 1996. He underwent a lengthy period of rehabilitation and suffered pain and migraines and it was in this period that he began to use methylamphetamine himself. Because of his injuries he was unable to return to his physical unskilled work. There was evidence that the appellant and another person operated a business venture for a time, but that venture failed.

22 His Honour mentioned that the appellant had married four years earlier and had two children. At the time of sentencing he had not told his family about his present conviction. He had previously been in gaol in relation to an assault charge and had not received any visits from his family because they considered that he had brought disgrace on them by being convicted and being in prison. His wife still supports him and she gave evidence in mitigation.

23 His Honour had a pre-sentence report and a psychological report. The psychological report revealed that the appellant was a somewhat depressed and pessimistic person, that he was a dependent personality, and that he tended to rely on others with regard to security and stability.

24 There was a delay of about 4 years between his arrest and conviction. His Honour referred to the fact that after his arrest and in this 4 year period, the appellant had undergone "considerable rehabilitation" by weaning himself off methylamphetamine. He underwent a course in anger management because of earlier convictions for assault and he agreed to act as mentor to other prisoners in custody.

25 His Honour noted that part of the 4 year delay was explained by an application by the appellant for an adjournment because of unavailability of counsel. There had also been a preliminary hearing. The relevance of delay in relation to sentencing is discussed in Scott v The State of Western Australia [2006] WASCA 28.

26 His Honour noted that he had made a declaration that the appellant was a drug trafficker which had consequences for the appellant. His Honour mentioned that personal circumstances bear less weight than they otherwise would in a charge of this nature and observed that the appellant did have a criminal record, some of it being in the Children's Court in 1983 and 1984. He had a record in adult courts in the late 1980s and early 1990s, offences largely driving-related, but it also included convictions for being unlawfully on premises, stealing and damage. He was convicted of a more serious offence in 1996 when he was convicted of two counts of assault occasioning bodily harm and imprisoned for 12 months. He had also been convicted of assault occasioning bodily harm in the early 1990s, and in 1990 convicted of possessing a smoking implement and fined a small amount.

"The sentence imposed was manifestly excessive in that it was outside the range of sentences open to the learned sentencing Judge in the proper exercise of his sentencing discretion having regard to the principles and sentences outlined in Tulloh v R (2004) 147 A Crim R 169."

28 The written submissions contend that the sentence were outside the range of sentences customarily imposed for this type of offence. In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, Miller J said, quoting from earlier authority in this Court:

"Although such examples do provide some guidance on appropriate sentences, it must be appreciated that their facts vary widely and that they have to be applied with considerable care. Furthermore, whilst the sentence imposed will almost invariably reflect the quantity of the drug involved, the sentence is not to be determined simply by multiplying the amount of the drugs by some period of time."

29 The appellant referred to a number of cases referred to in Tulloh. It is said that those cases indicate that this sentence was outside the range of sentences customarily imposed. The appellant also referred to the recent case of Macri v The State of Western Australia [2006] WASCA 63, where the appellant in that case had been convicted of offences involving possession (in his pocket) of 18.2 grams and 2.61 grams of methylamphetamine. The purity of the first amount was 1 per cent and the purity of the second amount was 14 per cent. In the console in his vehicle were found an additional 54.04 grams of methylamphetamine of 80 per cent purity. After trial, Macri was sentenced to 8 years' imprisonment. His appeal against sentence was dismissed by this Court.

30 The cases referred to in Tulloh and Macri are not the only cases which might be referred to. Nevertheless, they are indicative of the type of sentences which are imposed in the types of circumstances referred to. In my opinion, the sentences imposed in this case were not manifestly excessive. They were within the range of sentences appropriate to these offences. The amount and quality of the drug involved in this case suggests that this appellant was high up in the distribution chain. I am aware of the comments in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and in Macri concerning the relevance of these factors. I am also conscious that there were strong personal factors in this case, but in addition, I am conscious of the fact that these personal factors are not usually given substantial weight in drug dealing cases and of the fact that his Honour did consider all of the personal factors in arriving at the sentences that he imposed.

31 In my opinion this ground of appeal should be dismissed.

32 At the commencement of the hearing of this appeal, the appellant sought an adjournment. The adjournment was sought, the Court was told by counsel for the appellant, so that proceedings in the Supreme Court under the Criminal Property Confiscation Act 2000 ("Confiscation Act") could first be determined which would, according to the appellant, then reveal what property had been confiscated and what property had been lawfully acquired. It was suggested that once it was determined in these proceedings what property had been lawfully acquired, this would be put forward as fresh evidence in support of a foreshadowed ground that there was a miscarriage of justice because this point of mitigation was not considered by the trial Judge. No evidence was put forward to explain what these proceedings were. However, as I explain below, I doubt that there are any outstanding proceedings under the Confiscation Act.

33 The Court dismissed the application for an adjournment at the hearing and said that it would give reasons later. These are my reasons for reaching that conclusion.

34 The Court was informed that a freezing notice was served on the appellant in 2001. The freezing notice was issued under s 34 of the Confiscation Act. A freezing notice may be issued by a Justice of the Peace on application from the DPP or police officer and it may be issued for any property if there are reasonable grounds for suspecting that the property is crime-used or crime-derived. The freezing notice comes into force when the notice is issued. The freezing notice stops being in force if, inter alia, there is a confiscation of property under s 8 of the Confiscation Act.

35 Once property is "frozen" (see the definition in the glossary to the Confiscation Act), a person must not deal with the frozen property. See s 50(1) of the Confiscation Act. Section 79 of the Confiscation Act provides that a person may file an objection to the confiscation of frozen property. The frozen property will be confiscated if the objection is not filed on or before the 28th day after the service cut off date for the property: see s 7(1). The Court was informed that there were objections lodged by third parties. The Court was also informed that these were resolved before the appellant was sentenced.

36 The position as at the day of sentence was that the appellant owned or effectively controlled approximately $101,000 which was not the subject of any third party claim. By consent of the parties, the Court was handed a letter which had been sent to the Associate to the sentencing Judge on 28 July 2005 which read as follows:

"Dear Mr Jordan

STATE OF WA v AMERIC URBANO

INDICTMENT 1220 OF 2002

I enclose a copy of the sentencing transcript relating to Darren Siegfried Benter and in particular the sentencing reasons of His Honour Judge Blaxell on the 4th November 2004. His Honour Judge Blaxell sentenced Mr Benter to a term of imprisonment of 7 years imprisonment with eligibility for parole. His Honour Judge Blaxell declared Mr Benter to be a drug trafficker.

At the sentencing hearing before His Honour Judge Healy on the 31st August 2005 the State will make an application for Mr Benter [sic Mr Urbano] to be declared a drug trafficker arising out of Mr Urbano's conviction in respect of count 1 on the indictment. A formal application is presently being listed through this office's Listing Section.

I advise that this office will be making an application for forfeiture of the $38,400 referred to in evidence at the trial in separate proceedings in the Supreme Court. Arising out of Mr Urbano's conviction the office will be making an application for the forfeiture of a further total amount of $101,000, the subject of a freezing order granted in the Supreme Court.

Yours faithfully

JAMES MACTAGGART

SENIOR STATE PROSECUTOR"

37 About a month later, on 31 August 2005, the matter came before the learned sentencing Judge to hear sentencing submissions and for sentencing.

38 Counsel for the prosecution moved for a declaration that the appellant was a drug trafficker. The learned sentencing Judge asked senior counsel for the appellant whether there was anything he wanted to say about that and counsel answered "No, sir". His Honour then declared the appellant to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act.

39 As soon as that declaration was made, the freezing notice ceased to have force as I have indicated above. At the same time, by reason of s 8(1) of the Confiscation Act, all property that the appellant owned or effectively controlled at the time the declaration was made and all property that the appellant gave away at any time before the declaration was made, was confiscated. The effect of that statutory confiscation is set out in s 9 and s 10 of the Confiscation Act. Relevantly, by s 10, all property except registrable real property that is confiscated under s 8 vests absolutely in the State when the section takes effect which is upon the making of the declaration under s 32A of the Misuse of Drugs Act. The situation then is that the $101,000 which the appellant says was his was confiscated on 31 August 2005.

40 There will not be any further process or hearing of any kind let alone a hearing in which there will be any determination about which of the appellant's property had been lawfully acquired.

41 If a convicted person wishes to put forward as a point of mitigation that the declaration as a drug trafficker under s 32A will mean that he or she will have property confiscated which had been lawfully acquired (in the sense that it was not acquired as a result of his drug dealing), then he or she is entitled to do so. This was known at the time of sentencing by reason of decisions of the Court in Kirby v The Queen [2003] WASCA 164 and in Sinagra-Brisca v The Queen [2004] WASCA 68. At the time, the latter authority suggested that "credible material" which suggested a source of property other than drug dealing should be placed before a sentencing Judge if it was submitted that this was to be taken into account as a point of mitigation.

42 No such attempt was made by the appellant. I have read the submissions of senior counsel in mitigation. No attempt was made to suggest that the $101,000, which had been confiscated immediately upon the declaration under s 32A, had been lawfully acquired. Notwithstanding this fact, the learned sentencing Judge in his sentencing remarks acknowledged that he had made a declaration that the appellant was a drug trafficker. He said:

"I have made a declaration today that you are a drug trafficker which has consequences for you and when one sentences people who are found in possession of this amount of drugs, and I am talking about the purity of the drugs particularly in relation to the second charge, their personal circumstances bear less weight than they otherwise would."

43 It seems from this passage that his Honour was acknowledging that there may be some loss of property lawfully acquired, even though no attempt was made by the appellant to say what that property was.

44 I should add that his Honour like counsel for the appellant before this Court, seemed to think that there were outstanding proceedings concerning the appellant's property which would have to be determined before confiscation occurred because he said:

"I am mindful that the state is pursuing applications in the Supreme Court for the forfeiture of the money found in the house and further sums in excess of $100,000. Those matters are contested and I am unable to speculate as to what the outcome of those matters might be for the purpose of sentence. I notice, however, from reading the sentencing judge's remarks in relation to Benter that that was fixed without any reference to any declaration as to forfeitures."

45 In my opinion, this misunderstanding matters not at all. What matters is whether the appellant put forward evidence that of the $101,000 which had been confiscated (or on his and the sentencing Judge's mistaken understanding - was likely to be confiscated), it all had been lawfully acquired. He did not do so.

46 Since sentencing took place, this Court has handed down the decision in Macri's case which reaffirms that the loss of lawfully acquired property can be taken into account in mitigation. Wheeler J, delivering the main judgment in Macri's case, said:

"The only modification which I would now make to the observations which I made in Sinagra-Brisca would be that, taking into account the observations of McKechnie J, and considering the legislative intent as revealed in the Second Reading Speech, I would alter somewhat the view which I expressed in [26] of those reasons. Rather than suggesting merely that some 'credible material' suggesting a source of property other than drug dealing should be placed before a sentencing Judge, it seems to me that, before a loss as a result of a s 32A declaration can be taken into account by way of mitigation, there must be material which leads a sentencing Judge positively to form the conclusion that all of the property to be lost, or some very substantial portion of it, has been lawfully acquired. In some clear cases, of course, there may be a concession by the State to that effect. That is not to suggest that, even in such cases, significant weight will be placed upon such a loss by way of mitigation. Much will depend upon the nature and scale of the loss and its impact on the offender, having regard to all of the offender's other personal circumstances."

47 The reason for refusing the adjournment is therefore that there are no proceedings which remain to be determined which will decide whether or not property of the appellant was lawfully acquired. Even if there had happened to be outstanding objections by third parties the determination of those objections would not necessarily determine whether the property of the appellant was lawfully acquired. Even if there were a possibility that, on the facts in a particular case, this issue may have to be determined, this would not mean that a sentencing court would be obliged to adjourn sentencing pending the outcome of the objection proceedings. Indeed it would be highly undesirable for the practice to develop where sentencing courts agreed to a drug trafficker's request to adjourn sentencing pending the resolution of objection proceedings. If the resolution were to occur soon after conviction, and if the issue about the lawful acquisition of property was likely to be resolved, then in such a case (which is likely to be rare) a sentencing Judge might be prepared to adjourn sentencing for a short time; but long adjournments for this purpose should not be countenanced. In the usual case, the person to be sentenced has to decide whether, for the purposes of mitigation, he or she wishes to lead evidence and satisfy a sentencing Judge on the balance of probabilities that he or she has property which was lawfully acquired and which will be confiscated upon a s 32A declaration being made.

Fresh or new evidence - the appellant's affidavit

48 At the time of sentencing, the appellant knew that he had been served with a freezing notice. He knew there had been a resolution of claims of third parties to some of the money. The amount which remained to be forfeited was about $101,000. He knew that on the day of sentencing he had been declared to be a drug trafficker.

49 The appellant has now proffered an affidavit in which he deposes to matters which he says show that the $101,000 was his property and was lawfully acquired, mainly because, he says, they were proceeds of an award of damages for the injuries he received in the motor cycle accident. He says, therefore, that the $101,000 was not derived from his drug dealing. He asks the Court to admit this further evidence and then, based on it, seeks to add a ground of appeal to the effect that this point of mitigation was not taken into account in sentencing and that, in consequence, there has been a miscarriage of justice. The affidavit deposes to facts or matters which existed or occurred well before he was sentenced in 2005.

50 If the affidavit is not admitted by the Court, then there is nothing to support the proposed ground of appeal.

51 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].

52 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.

53 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.

54 Since writing the above reasons, the Court has received from the respondent a letter which reads:

"... subject to the admissibility of the appellant's affidavit, the respondent concedes that the undisputed state of the evidence before the Court of Appeal is that the $101,000 referred to in the affidavit was lawfully obtained by the appellant."

55 I have concluded above that the appellant's affidavit should not be admitted. Thus the condition on which the respondent was prepared to make the concession has been satisfied. In any event, the time for the appellant to have sought such a concession was at the time of sentencing, not on appeal.

56 I would therefore refuse the appellant's application under s 40 of the Criminal Appeals Act to have the Court admit the appellant's affidavit as evidence in the appeal.

Property Confiscation Act 2000

Legislation Amendment and Repeal Act 2003

Urbano v The State of Western Australia [2006] WASCA 147

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (107 paragraphs)

Urbano v The State of Western Australia [2006] WASCA 147 (26 July 2006)

Parties

Legislation Cited (4)

Cases Cited (10)