Powell v Fuller [2005] WASC 91

File No : CO 355 of 2004, CO 356 of 2004, CO 357 of 2004

Criminal law - Appeal - Appeal against conviction where appellant pleaded guilty and was represented by counsel - Procedure where defendant charged with indictable offence which includes a summary conviction penalty - Appeal against sentence - Whether sentence manifestly excessive

Criminal Code (WA), s 5, s 5(2), s 5(3), s 381(1), s 574(4)

Justices Act 1902, s 99, s 196

Sentencing Act 1995, s 15

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Dhu v Ward [2000] WASCA 140

Dinsdale v The Queen [2000] HCA 54

Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995

Long v Mayger [2004] WASCA 41

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

R v Birks (1990) 19 NSWLR 677

R v Forde [1923] 2 KB 400

R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Galasso v The Queen (1981) 4 A Crim R 454

Harriman [1989] HCA 50; (1989) 167 CLR 590

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mason v Strudwick, unreported; SCt of WA (Murray J); Library No 920703; 3 December 1992

Peacock v The King [1911] HCA 66; (1911) 13 CLR 619

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234

R v B (CR) (1990) 55 CCC (3d) 1

R v Boardman [1975] AC 421

R v Murphy [1965] VicRp 26; [1965] VR 187

Re: Boothman, Ex parte Landers [1999] WASC 169; (1999) 108 A Crim R 329

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

1 This matter was instituted as one appeal although the order for leave to appeal refers to decisions of two Magistrates. From the papers and the oral submissions made at the hearing of the appeal it is clear that the appellant appeals from the decisions made by both Magistrates.

2 The first matter under appeal is what is said to be the decision of Mr Fisher SM sitting in the Court of Petty Sessions at Collie on 22 September 2004 whereby on complaints numbered 355, 356 and 357 of 2004 the learned Magistrate found the complaints proven. The order granting leave to appeal states that the second matter under appeal is the decision of Mr Wilson SM sitting in the Court of Petty Sessions at Bunbury on 10 November 2004 whereby on the same complaints he found them proven and sentenced the appellant to 11 months' imprisonment and a fine of $300.

3 I note that there are several errors in the order for leave to appeal. The first being, that the appellant was sentenced on 19 November, not 10 November. Mr Wilson SM heard submissions on 10 November. Secondly, the appellant was sentenced to two terms of imprisonment, one being an 8 month term of imprisonment and the second being a 3 month term of imprisonment. They were ordered to be served concurrently. Thirdly, the order refers to Mr Wilson SM having dealt with the appellant at Bunbury whereas it was at Collie on 10 November and Bunbury on 19 November.

4 Unfortunately these errors are illustrative of a number of problems in the prosecution of this appeal.

5 The correct details of the convictions and sentences under appeal are as follows:

1. Complaint number 355/04 being a charge that on 12 August 2004, at Collie, the appellant being a disorderly person who when requested by an authorised person to leave the licensed premises of the Crown Hotel failed to do so contrary to the Liquor Licensing Act (WA), s 115(6) - fine $300.

2. Complaint 356/04 being a complaint that on 12 August 2004 at Collie the appellant assaulted one Adrian David Fuller a public officer then performing a function of his office contrary to the Criminal Code (WA), s 318(1)(d) - 8 months' imprisonment to commence on 17 November 2004.

3. Complaint 357/04 being a complaint that on 12 August 2004 at Collie the appellant resisted Adrian David Fuller, a member of the Western Australian police force, then acting in the execution of his duty contrary to the Police Act (WA), s 20 - 3 months' imprisonment. This was ordered to be served concurrently with the term of 8 months' imprisonment.

6 Regrettably the grounds of appeal are prolix, fail to distinguish between whether they are grounds of appeal relating to sentence or conviction and are very difficult to understand. There are eight grounds of appeal. One ground has eight sub-grounds and another has seven sub-grounds. It would not be helpful to set them out in full. The grounds can be said to raise various issues and I intend to deal with this appeal as best I can by addressing those issues. I identify the issues as follows:

1. Whether there was a miscarriage of justice because the appellant was inadequately represented by legal counsel;

2. whether there was a miscarriage of justice because the Magistrates in accepting the appellant's pleas of guilty and sentencing him did not take into account his personal circumstances including his lead poisoning, mental blackouts and disadvantaged childhood;

3. whether the pleas of guilty and sentences should be quashed because the appellant's pleas of guilty were not made voluntarily;

4. whether the convictions and sentences should be quashed because the Magistrates did not follow the then statutory procedure for dealing with an indictable offence containing a summary conviction penalty;

5. whether there was a miscarriage of justice because of the evidence of Douglas Charles Fleay that the appellant now seeks to rely on; and

6. whether the sentences were manifestly excessive.

7 The appellant is a 41-year-old man who resides in Collie. On the evening of 12 August 2004 he was a patron of the Crown Hotel in Collie. He was arrested on that date at the hotel. On 16 August 2004 the complaints referred to above were laid. From the indorsements on the complaints it appears as if the appellant appeared in court on at least a couple of occasions, probably before Justices of the Peace, before he appeared before Mr Fisher, a then Stipendiary Magistrate at Collie on 22 September 2004. On that date the appellant was represented by duty counsel. Each charge was read to the appellant. After each charge was read he was asked whether he understood the charge. In each case he replied "Yes sir". He was then asked whether he pleaded guilty or not guilty and to each charge he entered an unequivocal guilty plea. The learned Magistrate did not expressly convict the appellant after the pleas were entered. However, by inference the pleas were accepted. The learned Magistrate then asked whether the appellant would benefit from a pre-sentence report and counsel requested a pre-sentence report and a psychological report. These were ordered and the appellant was remanded to appear in Collie on 3 October 2004. The appellant's bail was extended to that date. The learned Magistrate told the appellant that it was important that he co-operate with the officers in the preparation of the reports and that it was his understanding that those who co-operated had a favourable report put to the court. He was further told that he would be approached and offered some advice and he needed to follow that advice strictly. I assume that that was advice regarding the preparation of the reports and perhaps advice to stay out of trouble until his next court appearance.

8 On 3 November 2004 the appellant appeared before Justices of the Peace who advised him that they would not deal with the matters but remand him through to 17 November. The appellant questioned a Justice of the Peace when she told him that he was on three charges. She then commenced to read the disorderly charge. The appellant interrupted her and acknowledged it by saying "I've been disorderly, yeah, the other two I know". He told the Justice of the Peace that there was no need for her to read out the other charges.

9 On 17 November 2004 at Collie the appellant appeared before Mr Wilson, a then Stipendiary Magistrate. He was apparently represented by the same duty counsel who had represented him at the initial plea. The learned Magistrate acknowledged that the pleas of guilty had been made and then asked the prosecutor to read the facts. In summary, the prosecution alleged that police were called to the Crown Hotel because another patron was being spoken to by the licensee and the licensee was attempting to get that patron to leave the premises. Two uniformed officers arrived at the hotel at about 10.30 pm and the appellant observed their arrival. He was inside the hotel and stepped in front of the doorway restricting the police officers' efforts to assist the licensee. On three occasions the licensee told the appellant, in the presence of police, to leave the premises. The appellant failed to leave and was forcibly removed by the police to the footpath. The appellant attempted to regain entry to the hotel by pushing past the police officers. A struggle ensued during which the appellant grabbed the throat of a police officer with his right hand. The appellant tightened his grip, using his fingers and thumb to push into the muscle next to the complainant's windpipe. This grip was only released when the complainant pulled away and the other police officer pulled the appellant backwards. The appellant was advised he was under arrest and the police attempted to place him in the rear of the security van. He resisted their efforts by violently kicking out at the officers who were trying to calm him down. The police managed to get the appellant to the rear of the van but on more than one occasion the appellant managed to get a portion of his body out of the van. He was eventually restrained by the use of handcuffs. It took four police officers more than five minutes to restrain and secure the appellant in the van from the time of his arrest. Once there he continued to yell obscenities at the police which had the effect of inciting other patrons to become involved. The complainant in the assault sustained no serious injuries but suffered discomfort and muscle tenderness.

10 The learned Magistrate then asked to hear the facts of the offences that the appellant was convicted of on 17 March 2004, being offences of assaulting a public officer and resisting arrest. On that occasion the appellant had been removed from the Crown Hotel because he was drunk and becoming aggressive towards other patrons. Police officers, who were unaware that the appellant had been removed from the licensed premises, saw him on the side of the road and offered to give him a lift home. As they stepped towards the appellant he lunged at them and struck one of them with both arms. The complainant had to defend himself by raising his hands and pushing the appellant away. The appellant was then arrested and struggled with the police as they attempted to place him into the rear of the police van. Once in the van he kept kicking out at the door of the van which prevented them from closing and locking it. Eventually he had to be removed from the van and handcuffed. This enabled the police to place him into the rear of the van but he continued to kick the door and struggle against the handcuffs.

11 The police prosecutor also read out the facts of the appellant's convictions on 7 January 2003 for two counts of assaulting a public officer. The facts were that on 3 November 2002 the police were attempting to seize stereo equipment as a result of a breach of noise abatement direction. Whilst the police attempted to remove the equipment the appellant became abusive towards the police and hindered their efforts to retrieve it. Another person was arrested and placed inside the police van. As the police attempted to drive away the appellant climbed onto the back steps of the security van and hung onto the caged area of the vehicle which was by then moving. The crowd from the party then began throwing rocks and bottles at the two police officers. The police stopped and advised the appellant he was under arrest. The appellant pulled away from the police and refused to climb into the security van by holding his arms and legs out on the doorway. The appellant struck out with his left hand striking one of the police officers to the left side of his face approximately six times. The appellant continued to struggle and resist police attempts to secure him inside the vehicle. Eventually the police managed to get the appellant partially inside the van but his legs were still free. The appellant attempted to get out of the vehicle and struck out with his left hand striking another police officer to the lower right jaw area approximately five times.

12 By the learned Magistrate's comments he was clearly considering imposing a custodial sentence. He noted that this was the appellant's fourth assault on a public officer within about two years.

13 The appellant's counsel submitted that this assault was not serious and described it as "a little bit of a scuffle". He referred to the fact that the appellant had been able to abstain from alcohol in the past and that he was now endeavouring to do that again by consulting the community drug service team. The appellant's counsel said that he had managed to abstain from alcohol for six years until his marriage break up and he acknowledged that alcohol was an ongoing problem for him. However, he submitted that because he had managed to abstain from alcohol in the past there was a strong probability that he could do so again.

14 The appellant's counsel referred to the appellant's excellent work history in that he had been employed by the same employer for the last 10 years. He also submitted that the appellant had personal reasons, in the form of two adult daughters and a young grandchild who needed his assistance, to stay away from alcohol and further trouble. His counsel submitted that he was a good candidate for a suspended sentence of imprisonment.

15 His counsel then made submissions about the pre-sentence and psychological reports, the appellant's early plea of guilty and the steps he was taking to avoid a custodial sentence.

16 The learned Magistrate heard from the prosecutor who submitted that these were serious offences, that the appellant had been given every opportunity to rehabilitate himself in the past but he had chosen not to. The prosecutor noted that the behaviour was all too prevalent in Collie and that a custodial sentence was appropriate.

17 The appellant's counsel then submitted that a Ms Hall, a former publican, had been present on the evening and knew the appellant. She had advised the appellant's counsel that for many hours before the offences occurred she had been telling the bar staff not to serve the appellant but that this did not occur and may have been a factor in his offending. The appellant's counsel repeated his submissions with respect to a suspended sentence.

18 The Magistrate made enquiries about the appellant's youngest daughter and was told that she had been living with the appellant for a month and that he was supporting her. The author of the pre-sentence report interjected at that time and indicated that he was "a little bit concerned" about that information because when he had interviewed the appellant for a verbal pre-sentence report earlier in the year the appellant had claimed that his youngest daughter had just come to live with him. The appellant attempted to clarify that by saying that his youngest daughter had come to Collie, apparently previously, but that she was living with "him" up until a month before. The learned Magistrate noted there was $4,362 in outstanding fines owed by the appellant. The appellant and his counsel advised that they were being paid off through his bank account at a rate of $20 a fortnight.

19 The learned Magistrate advised the appellant that he regarded these as serious offences which required deterrent sentences. He referred to the appellant's prior convictions. He advised the appellant that he was at serious risk of a term of imprisonment and adjourned sentencing to 19 November 2004 at Bunbury. The appellant was remanded in custody to that date.

20 The pre-sentence report that was prepared for the purposes of sentencing contained the following paragraph:

"[The appellant] accepts the details of the current offences as described in the Police Statement of Material Facts. He expresses remorse and shame for his actions and acknowledges that incidents of similar behaviour to that resulting in the current offences have occurred with increasing frequency over the last 18 months or so. [The appellant] attributes this pattern to problematic alcohol abuse. He states that with regard to the current offences he commenced consuming Bourbon at about 5.00pm and claims to have been so inebriated when the offences occurred at 10.30pm that he has little recall of exactly what occurred."

21 The pre-sentence report attached a copy of the appellant's prior criminal history and noted that his offending history dates from when he was 18 years of age and predominantly pertains to convictions contributed to by excessive alcohol consumption. It noted that an absence of any convictions between 1987 and 1995 reflected a period when, according to the appellant, he abstained from alcohol consumption for an extended period. The report noted that the appellant has previous convictions for resisting arrest in 1984 (twice), 1987, January 2003 and March 2004. The latter two incidents having resulted in convictions for a total of three offences of assaulting a public officer and a conviction for hindering police. The report noted that the appellant had been sentenced to two community based orders in the past and had completed both.

22 The report referred to the appellant's family, relationship, education and employment history as being adequately detailed in the psychological report. It noted that the appellant had unresolved issues relating to his family and relationship history. The report noted that the appellant had been employed in his current position for the past three years and had been first employed by this business soon after leaving school and subsequently on and off for various periods since that time. The report noted that the appellant had a number of debts including a debt to the Fines Enforcement Registry of the amount previously mentioned.

23 Under the heading of "Health & Substance Abuse" it was noted that the appellant had had hepatitis as a child and suffered from liver damage. Further, he had been assessed as having high levels of lead in his body but that he otherwise reported reasonable health. The author noted that the psychological report referred to a likely history of depression. He had previously been a heavy user of cannabis but now only used it on an occasional social basis. The appellant acknowledged that he recommenced alcohol use after his marriage break-up. The author noted that when the appellant was interviewed for a verbal pre-sentence report in January 2003 the appellant recognised that his alcohol consumption was causing him problems, that he said he had consumed alcohol on only one occasion in the nine weeks since committing those offences and that he had resolved not to consume alcohol in the future in order to focus on his full time employment and caring for his 18-year-old daughter. The author noted that it would appear "that subsequent to that Court appearance [the appellant] did not have the capacity, resolve or motivation to maintain his sobriety".

24 In summary, the author noted that the appellant declared remorse and shame for his actions with regard to the current offences and stated an intention to address the issue of alcohol abuse. The author said that the appellant would be a suitable candidate for further community supervision if the Court was of the view that such a disposition would be appropriate in all the circumstances. Alternatively, he said "the Court may consider that another option may be more likely to encourage [the appellant] to maintain his current stated motivation to address his offending triggers".

25 The psychological report was not contained in the appeal book but I have obtained a copy of it. It is a comprehensive six page report covering the appellant's personal details, a psychological assessment, the results of psychometric testing, a risk assessment and summary.

26 On 19 November 2004 the appellant appeared before Mr Wilson SM in the Court of Petty Sessions at Bunbury. The same duty counsel appeared for the appellant. It was noted that the appellant's father and sister were in Court. Counsel made further submissions about the appellant's personal circumstances. The appellant submitted, through his counsel, that he is "an aggressive, bad drunk" but that the incident that was before the court was effectively "a push and shove scuffle". The appellant's counsel referred to the psychological report and the opinion in it that the appellant's use of alcohol was a mechanism to escape his childhood because he had not had contact with his mother and had not come to terms with that. He referred to the psychologist's opinion that the appellant was considered to be at a high risk of re-offending if he continued to drink alcohol. However, he had made a commitment to manage the alcohol through abstinence. The psychologist was of the view that he had demonstrated such abstinence in the past indicated a strong probability that he could do it again.

27 Further submissions in mitigation of penalty were made that repeated what had been said on the earlier occasions. The prosecutor made further submissions that repeated the desirability of a custodial sentence.

28 The Magistrate then sentenced the appellant. He recited the facts and the appellant's prior criminal history, particularly in respect to his convictions for assaulting and hindering police.

29 He referred to the appellant's significant alcohol problem, his good employment history and his previous period of abstinence from alcohol. He noted that he had approximately $4,500 in outstanding fines. In respect to the assault on the police officer, the learned Magistrate referred to Dhu v Ward [2000] WASCA 140. Whilst he acknowledged there was currently a view that an immediate term of imprisonment for the offence of assaulting a police officer may not always be the appropriate penalty, nonetheless, the underlying view is that any assault on a police officer is a very serious offence. He referred to five decisions of this Court where that view had been reiterated.

30 The Magistrate did not accept the appellant's counsel submission that the assault was not much more than being disorderly. He expressed the view that it was very different to disorderly conduct because the officer had been grabbed by the throat, which was one of the more vulnerable parts of any person and that this fact aggravated the offence. He referred to the risk of injury that police officers were under when they were called to licensed premises to deal with people who were intoxicated by alcohol and the community expectation that the police will intervene despite the unpredictable behaviour of intoxicated people. He said that he regarded the offence as a very serious assault.

31 The learned Magistrate reiterated a number of matters in mitigation such as the appellant's work history, his early plea of guilty and his engagement in counselling. He said that he was concerned that the content of the pre-sentence report indicated that the day the appellant attended on the psychologist in October 2004 the appellant appeared to have been drinking heavily over a period of time shortly before the appointment. In fact it is the psychologist's report which states this and says further that the appellant admitted to having consumed about two bottles of spirits over the four days prior to the interview. The learned Magistrate said that he would not go into the substance of the psychological report for reasons of privacy but said that he had read both reports and considered all matters contained in them.

32 The learned Magistrate referred to the prevalence of assaults upon police officers and the need for both personally and generally deterrent sentences.

33 The learned Magistrate then turned his attention towards the offence of resisting the police officer and the fact that a number of police officers were required to restrain him. Again he regarded it as a serious offence.

34 The learned Magistrate said that he considered all of the options available to him but in his view the seriousness of the nature of the offence was such that only a sentence of imprisonment was appropriate. He then went on to consider whether such a sentence could be suspended. He said that he had considered Dinsdale v The Queen [2000] HCA 54 and that he had taken into account the circumstances of the offences and matters personal to the appellant. He said that he had also considered Long v Mayger [2004] WASCA 41. He said that he had formed the opinion that it was inappropriate to suspend the term of imprisonment because of the circumstances of the assault being a serious assault. The learned Magistrate then sentenced the appellant as detailed earlier in this judgment.

35 The appellant has filed an affidavit in support of this appeal sworn 7 January 2005. In it he deposes that counsel who represented him in the then Court of Petty Sessions (a different counsel represented him on appeal) "did not make an adequate 'getting up' of my defence because there was a costs restraint imposed on him by his employer" the Legal Aid Commission of Western Australia. Consequently the appellant alleges that his counsel "could not have made an adequate plea in mitigation".

36 In R v Birks (1990) 19 NSWLR 677 at 685, Gleeson CJ summarised the relevant principle where it was alleged that there had been a miscarriage of justice due to the incompetence of counsel during a trial before Judge and jury. In my opinion these principles are also applicable to an appeal against a Magistrate's decision. The principles are:

"1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

37 Consequently a mere allegation of incompetence or, as in this case, inadequacy will not succeed on appeal even where there is some proof of incompetence or inadequacy on the part of counsel. What must be further shown is that something has occurred which has resulted in a miscarriage of justice. Consequently the grounds of appeal relating to the mere incompetence or inadequacy of counsel fails. The appellant's allegation that his counsel inappropriately encouraged him to enter a plea of guilty and failed to put matters personal to him before the Court will be dealt with separately.

38 I add that in any event there is no evidence before me of the incompetence or inadequacy of counsel. The submissions of counsel and his general conduct were of the standard and nature I would expect in proceedings of this kind.

Failure to Take into Account the Appellant's Circumstances Including his Lead Poisoning, Mental Blackouts and Disadvantaged Childhood

39 The appellant's affidavit refers to his disadvantaged early life leading to alcohol abuse from a young age. Further, it asserts that he had "psychological aversion to the police" because of the unjustified treatment he has received from them in the past. As a consequence he says he always gets a "nervy mental blackout" feeling whenever police are present.

40 Before sentencing the appellant the learned Magistrate heard a plea in mitigation from his counsel and received a pre-sentence report and psychological report. The Magistrate noted that he had considered both documents at length. However, for reasons of privacy he did not expressly refer to all matters contained in the psychological report. The Magistrate's sentencing remarks were nearly six pages of transcript. There is nothing in them to indicate that the learned Magistrate failed to take into account all the matters that were relevant and of which he had been told.

41 Some of the matters that the appellant now relies upon were not before the learned Magistrate. I will deal with these in turn.

42 The first is the allegation that the appellant suffers mental blackouts and suffered one when he was alleged to have committed these offences. I note that there is a reference in the psychological report to the appellant's claim that he suffered a blackout but that he nevertheless accepts he committed the offences. There is no medical evidence before me regarding the appellant's mental blackouts. However, the appellant deposes that he had a mental blackout at the time of the commission of these offences. At par 19 of his affidavit he states:

"Once this mental stage is reached, I have a tendency to behave violently and irrationally only to police and thus would not be able to understand momentarily whether what I was doing was wrong or right. This is not an admission to this Honourable Court that I had behaved violently to the police at the time I was arrested on the night of the 12th day of August, 2004."

43 The appellant goes on to give his version of the events of that evening. This version expressly denies that the appellant committed the physical acts which constitute the relevant offences. The appellant's counsel told me that the appellant denied committing these offences.

44 The account of relevant events given by the appellant in his affidavit is inconsistent with a lack of memory of the crucial time period caused by a blackout. He acknowledges that "although drunk, I was not in such a drunken state as to be unaware of what I was doing".

45 Despite these assertions the appellant goes on to claim that he was wrongfully convicted of these offences because at the relevant times he did not form any intention to commit the offences because he suffered a mental blackout occasioned by the combined effects of his drunken state, the lead poisoning of his body and his phobia of police.

46 I find that because of the inconsistencies in it, the material in the appellant's affidavit regarding the alleged mental blackout is unreliable and incredible. I do not accept that there is credible evidence to support the proposition that the appellant suffered a mental blackout at the time these offences were committed. Consequently I do not accept that there was any miscarriage of justice because the Magistrate did not refer to such a possibility in his sentencing remarks.

47 The second matter that the appellant submits that the Magistrate was unaware of was the effect of his blood lead level, in combination with his alcohol consumption, on his behaviour.

48 The Magistrate was aware that the appellant had a high level of lead in his body but the Magistrate was not advised that this might effect the appellant's behaviour or cause mental blackouts. The appellant has, on appeal, filed a number of documents said to support his allegation that the high level of lead in his body together with his consumption of alcohol would lead to a mental blackout. This material consists of a laboratory report stating that the appellant has a blood lead level of 40 ug per 100 ml. It states that "occupational exposure: 60 excessive". He has also filed a copy of what appears to be an excerpt from a book. The document is titled "Studies on Experimental Lead Poisoning" by five authors said to be from the Institutes of Pathophysiology and of Pharmacology of the Medical University, Institute for Experimental Physics, Kossuth Lajos University, Debrecen. The paper is said to have been received on 25 June 1953. It appears to relate to experiments on cats. The paper's summary states:

"In experiments concerned with acute lead poisoning carried out with labelled isotopes unequivocal evidence was obtained indicating that alcohol accelerated the absorption of lead from the gastrointestinal tract, on the one hand, and promoted the transfer of lead from the blood into the cells, on the other."

49 The article does not appear to have any relevance to the facts of this case.

50 The appellant also filed an article or abstract of an article by David Griesemer, Chairman of Neurology, Associate Professor, Department of Paediatrics and Neurology, Medical University of South Carolina. It contains a description of some symptoms of elevated blood lead levels. These include temperamental lability, irritability, behavioural changes and hyperactivity or decreased activity. The article does not indicate at what blood lead levels these symptoms are likely to occur. The article is far too general to be of any assistance to the appellant in this case.

51 The appellant filed a further affidavit sworn 14 January 2005 which annexed a copy of a medical report from Dr B Saharay. In respect to the appellant's blood lead level the report states:

"After discussion with a toxicology consultant, Dr Lindsay Murray of Sir Charles Gardner [sic] Hospital, it was concluded that though the level of lead was more than normal, it was still at sub-clinical levels. This means at this level there would be no clinical symptoms or ill health.

...

Effect of ethanol excess in blood in association with higher than normal level of lead in blood has not been studied in humans and I cannot express any opinion on this subject."

52 There is nothing in this report which assists the appellant.

53 Finally, the appellant relies upon a report from Dr Frank F S Daly, Consultant Clinical Toxicologist and Emergency Physician, dated 21 April 2005. Dr Daly states that he has examined the three documents I have just referred to. He had also spoke with the appellant's counsel and received a letter, which I have not sighted, from the appellant's counsel. He had not examined the appellant. The report is quite informative. Relevantly, Dr Daly states that a lead level of 40 mcg/dl, being that of the appellant, "would not be expected to be associated with severe alterations of neurological or behavioural function that might be termed 'mental blackouts'." He said:

"In contrast, there are several effects of acute or chronic ethanol consumption alone that might be called 'mental blackouts'. There is no evidence in the peer-review medical literature or authoritative texts to support the hypothesis that lead increases, enhances or augments the toxicity of ethanol at any given level in humans, or vica versa [sic].

Therefore, in conclusion, there is no evidence to support the hypothesis that in human symptoms that might be described as 'mental blackouts' are caused by alcohol because of occupational lead intoxication."

54 In my opinion, the views expressed by Dr Daly contradict the hypothesis put to this Court on appeal by the appellant. Similarly, Dr Daly's report and the other documents that the appellant relies upon would not have assisted the appellant if they had been before the learned Magistrate. It would have been positively misleading for the Magistrate to have been told, and an error for him to have taken it into account if he had been told, that the combined effect of alcohol and the appellant's blood lead level had caused him either to have a mental blackout or to cause him to be incapable of forming the mens rea to commit these offences as alleged.

55 The appellant deposes that he was told by his lawyer to plead guilty. He says that he did so in order to "get to the pre-sentence report for my lawyer to defend me. But things went wrong and I was imprisoned". He also deposes that he pleaded not guilty to the disorderly charge. However, this is not supported by the transcript, the indorsement on the complaint or counsel's submissions. I will proceed on the basis that the appellant pleaded guilty to all charges.

56 The appellant further states that he did not commit these offences. As I have said his affidavit is ambiguous as to whether that is because he asserts he did not commit the physical acts which constitute the offences or whether it is because he did not consciously and intentionally perform those acts. His counsel, from the Bar table, assured me that it was the former case.

57 I accept that a person who has entered a plea of guilty may appeal against the subsequently recorded conviction. However, not unexpectedly, the courts are reluctant to allow such appeals save in exceptional circumstances. In R v Forde [1923] 2 KB 400 at 403, Avory J said:

"A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged."

58 In this State, as in most others, it has been suggested that the dicta in R v Forde (supra) expressed the position too narrowly. If an appellate court is satisfied that an applicant has been the victim of a miscarriage of justice in any other way, it will set aside the conviction: Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995 per Kennedy J at 18. However, the mere possibility that an appellant is not guilty is insufficient to conclude that there has been a miscarriage of justice. Thus, in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 141 Brennan, Toohey and McHugh JJ said:

"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 court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

59 In R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229, at 238, Greg James J referred to a number of different circumstances in which an appeal might be successful from a conviction entered as a consequence of a plea of guilty. I summarise these further as being where the appellant did not appreciate the nature of the charge to which the plea was entered, where the plea was not a free and voluntary confession, where the plea was not attributable to a genuine consciousness of guilt, where there was a mistake or other circumstance affecting the integrity of the plea as an admission of guilt, where the plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty, where the plea of guilty was not unequivocal and was not made in circumstances suggesting it was a true admission of guilt and if the appellant entered the plea, not being in possession of all the facts and therefore did not entertain a genuine consciousness of guilt.

60 In my opinion none of those circumstances arose in this case. The following facts are critical to my decision:

1. The appellant was represented by apparently competent counsel when he entered his pleas of guilty;

2. before each plea was taken the learned Magistrate asked the appellant if he understood each of the charges and he replied, yes;

3. there is no evidence before me establishing doubt as to the appellant's understanding of the factors affecting his guilt or innocence when he entered his pleas of guilty;

4. there is no evidence that the appellant misunderstood any matter of fact or law that was relevant to his plea;

5. the appellant has a substantial prior criminal history indicating that at the time he entered his pleas he was familiar with the criminal justice process and the effect of a plea of guilty; and

6. the appellant admitted the offences to the authors of the pre-sentence report and the psychological report.

61 In my view, the appellant fully understood the effect of his pleas of guilty and he made a conscious decision to enter pleas of guilty to these offences out of a consciousness of guilt.

62 In any event, the appellant's affidavit in this respect does not make sense. He deposes that he was told to plead guilty by his counsel in order to get the pre-sentence report for his lawyer to defend him. I note that the appellant had previously taken part in the preparation of a verbal pre-sentence report. One inference to draw from his affidavit is that he did not believe that his pleas of guilty would result in convictions for these offences. However, he does not explicitly say that and his experience in the criminal justice system would tend to disprove such a belief. His admissions of guilt to the authors of the pre-sentence report and the psychological report, together with the submissions of his counsel before the Magistrate, leads me to the conclusion that the appellant was well aware that by pleading guilty he was foreclosing his right to "defend" the charges.

63 On appeal the appellant's counsel relied upon the comment made by the learned Magistrate to the effect that it was in the appellant's best interests to co-operate with the author of the pre-sentence report as showing that improper pressure was put on the appellant in respect to his pleas of guilty. I note that these comments were made after the appellant had entered his pleas of guilty. Therefore I do not see how the appellant could have interpreted the comment as a direction to him to enter pleas of guilty. Further, a suggestion that he co-operate in the preparation of the reports is not pressure to dishonestly acknowledge his guilt to the authors of the pre-sentence and psychological reports.

64 With respect to the appellant's assertion that he cannot recall the events of this evening, I refer to my earlier comments about the inconsistent and incredible nature of his affidavit material. I do not accept that the appellant does not recall the events of this evening when he has expressly deposed to what happened during the evening and denied that he either assaulted the complainant or was disorderly.

65 For these reasons I would dismiss the grounds of appeal relating to the involuntariness of the pleas of guilty.

The Procedure for Dealing with the Charge of Assaulting a Public Officer

66 This ground of appeal only relates to complaint 356/04 being that the appellant assaulted a public officer then performing a function of his office. The other two charges are summary offences and there is no doubt that the learned Magistrate was obliged to put the charges to the appellant and take his pleas to them. The position with respect to complaint 356/04 is different because it is an indictable offence that is triable summarily. The Criminal Code, s 318(1) provides that any person who assaults a public officer then performing a function of his office is guilty of a crime and is liable to imprisonment for 10 years. The section also contains a summary conviction penalty of imprisonment for 3 years or a fine of $12,000.

67 The Criminal Code, s 5(2) states that where an Act provides a summary conviction penalty for an indictable offence the Court of Petty Sessions is to try the charge summarily unless on an application made by the prosecutor or the accused before the accused pleads to the charge the court decides that the charge is to be tried on indictment or the Criminal Code or another written law expressly provides to the contrary. The Criminal Code, s 5(3) lists five circumstances in which the court may decide to try such a charge on indictment.

68 The appellant submits that before taking the plea of guilty to this charge the learned Magistrate was obliged to explain to the appellant that he had a right to elect to have the charge dealt with summarily or on indictment. In my opinion this was not the law at the time the appellant entered his plea of guilty to this offence. The Criminal Code, s 5 was amended to the form I have just particularised by the Criminal Code Amendment Act 2004 which commenced on 21 May 2004. The appellant entered his plea on 22 September 2004. Prior to 21 May 2004 the Criminal Code, s 5 gave an accused the right to elect to have an indictable offence triable summarily either dealt with summarily or on indictment. A Magistrate was obliged to advise an accused of this right before requiring the accused to elect. The Criminal Code, s 574(4) was also repealed by the Criminal Code Amendment Act 2004. Prior to its repeal it set out the procedure where a person was charged before a Court of Petty Sessions with an indictable offence which could be dealt with summarily. That procedure included the obligation of a Magistrate to explain to an accused that he was entitled to be tried on indictment or could elect to have the matter dealt with summarily. As I have indicated this procedure was repealed at the same time as s 5 was amended. Thus, at the time the appellant was required to plead to this charge he did not have a right to have the charge dealt with on indictment and there was no obligation on behalf of the learned Magistrate to advise the appellant that he had such a, non-existent, right.

69 Despite the May 2004 amendments to the Criminal Code, s 5 and the repeal of s 574, the Justices Act 1902, s 99, at the relevant time, contained a procedure to be complied with by Magistrates where an indictable offence could be dealt with summarily. That procedure included telling an accused that he or she had the right to have the charge dealt with by a Judge and a jury or could elect to have the charge dealt with summarily. In my opinion this provision had no applicability to the offence with which the appellant was charged. It was the Magistrate who had the right to decide whether the matter should be dealt with summarily. If he did not decide prior to an accused entering his plea that the charge should not be dealt with on indictment then there was no requirement on the learned Magistrate to comply with the Justices Act 1902, s 99. It is obvious that it would have been entirely misleading to do so.

70 Consequently I would dismiss this ground of appeal.

71 On 6 January 2005 the appellant filed an affidavit of Douglas Charles Fleay which he seeks to rely upon in this appeal. The respondent opposes the admission of the affidavit.

72 At the time of the hearing of this appeal the admission of this evidence was governed by the Justices Act 1902, s 196 which stated that the court shall determine the appeal on the material that was before the Justices and on such further evidence, either oral or affidavit as the court thinks fit to receive. The then Supreme Court Rules, O 65A r 3 provided that an application for leave to adduce further evidence shall be made by notice of motion supported by an affidavit showing the nature of the evidence and the basis on which the court will be asked to receive it. The affidavit was not accompanied by a notice of motion or an affidavit explaining the basis on which I was asked to receive the evidence.

73 The affidavit of Mr Fleay states that he was present with the appellant at the time of his arrest. He deposes that when the police arrived the door of the hotel was shoved open and it landed on the appellant's back. He said that the appellant pushed it back but it was shoved open again and four or five police officers, without warning grabbed the appellant and physically removed him from the hotel. Mr Fleay refers to the appellant being in a shocked state. He says that he was watching the appellant and the appellant did not grab anyone's neck and no one had told him to leave the bar or the hotel. He states that later that evening went to the police station to tell them that they had arrested the wrong person. He says that approximately 30 minutes later the appellant was released and he and the appellant went home.

74 It is clear that this evidence would have been available to the appellant at the time he entered his pleas of guilty and on the subsequent occasions on which he appeared before the Magistrate. No explanation has been provided to me as to why the evidence was not called and why the affidavit was only filed on 5 January 2005. On the date of the hearing of the appeal Mr Fleay was not available at Court to be cross-examined on his affidavit. In all the circumstances, it does not seem to me that the appellant has justified why this affidavit should be admitted on appeal. The respondent has not been given the opportunity to cross-examine Mr Fleay and no application was made by the appellant to adjourn the hearing of the appeal to enable Mr Fleay to be present for the purposes of cross-examination. These matters, together with the failure of the appellant to explain in any way why Mr Fleay's evidence has only been adduced at such a late stage in these proceedings has led me to conclude that I should not admit this evidence on appeal.

75 I add that even if I had admitted it on appeal it would not have altered my decision with respect to these grounds of appeal. It is not clear to me how Mr Fleay could have, as he claims, a clear view of all the acts of the appellant that took place both inside and outside the hotel. The evidence does not lead me to conclude that the appellant's convictions have resulted in a miscarriage of justice.

76 There is no ground of appeal which particularises the error or errors that the appellant says that the learned Magistrate made in imposing the sentences he did. Various grounds of appeal refer to the failure of the learned Magistrate to take into account the appellant's personal circumstances. I infer that these grounds relate to sentence as well as to conviction.

77 The learned Magistrate was aware of all matters relevant to sentencing and took these into account when determining the appropriate penalties for these offences. The learned Magistrate heard submissions from the appellant's counsel on two occasions, he received a thorough pre-sentence report and a comprehensive psychological report. He took time to consider his sentence. In his sentencing remarks he referred to many of the matters that were personal to the appellant and said that he would not particularise other matters that were private to the appellant. I have no reason to doubt his comment that he took into account all the matters contained in the pre-sentence report and the psychological report.

78 Earlier in these reasons I have stated why I do not accept that it was relevant for the learned Magistrate to take into account the appellant's blood lead levels. Those remarks are as appropriate with respect to the appeal against sentence as they are with respect to the appeal against conviction.

79 As to the appellant's allegation that he suffers from mental blackouts, I would repeat the comments that I have made earlier in these reasons. Simply put, I am not satisfied on the evidence before me that the appellant suffered a mental blackout at the time he committed these offences. His recollection of the events is inconsistent with such a blackout. Consequently, I am of the opinion that it was not an error for the learned Magistrate to fail to take into account this possibility when sentencing the appellant. In any event, I do not see that it is mitigatory that the appellant claims to be aware, and there is no reason why he would not have been similarly aware prior to the commission of these offences, that he becomes aggressive and suffers blackouts when he drinks alcohol. Nonetheless he voluntarily consumed alcohol to excess on this evening.

80 The appellant's written submissions address an issue relating to sentence that is not the subject of a ground of appeal. It is alleged that the learned Magistrate should not have taken into account the facts relating to the appellant's previous similar convictions. It is said that those facts were inadmissible propensity evidence.

81 I do not agree. A judicial officer may inform himself or herself in any way they think fit of the facts relevant to sentencing: Sentencing Act 1995, s 15. The learned Magistrate thought that it was relevant to ascertain the facts of the appellant's previous similar convictions by requesting the prosecuting police officer to read those to the Court. The appellant's counsel did not dispute those facts.

82 The learned Magistrate was correct and acting within his discretion to request information about those previous convictions. It may be appropriate for a judicial officer to be aware of the details of the offender's prior criminal history to ascertain whether the current offences are "an uncharacteristic aberration" or whether they manifest "a continuing attitude of disobedience to the law". If that is the case "retribution, deterrents and the protection of society may all indicate that a more severe penalty is warranted": Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477.

83 It is apparent to me that this is why the learned Magistrate sought the details of the appellant's prior criminal history. He was within his discretion to do so and to take them into account when determining sentence.

84 Finally, out of fairness to the appellant and not because it is expressed as a ground of appeal I will address whether the sentences of imprisonment were excessive because the learned Magistrate declined to suspend them.

85 The learned Magistrate approached the sentencing task in the correct manner. He determined that a sentence of imprisonment was appropriate for the assault and the resist arrest charge and then considered whether it was appropriate to suspend those sentences of imprisonment. In considering whether it was appropriate to suspend the sentences of imprisonment he took into account all the matters both relevant to the commission of the offence and the appellant. No error has been shown in his approach to the sentence.

86 Further, he took into account the relevant case law in respect to assaults on police officers. The most recent of those is Dhu v Ward (supra). That was an appeal by an offender against a sentence of 6 months' imprisonment for assaulting a police officer and a further sentence of 1 month imprisonment to be served cumulatively for resisting arrest. In refusing the offender's appeal Miller J reviewed the principles relevant to sentencing for these types of offences. It is clear from his Honour's review of previous cases that offences of assaulting a police officer are considered serious offences which generally require a significant deterrent penalty. Whilst a sentence of imprisonment is not a mandatory penalty and the normal sentencing principles must apply, nonetheless it is not inappropriate to start from the position that a sentence of imprisonment is the usual penalty for such an offence. In Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999, Kennedy J at 4 - 5 said:

"In my view, the sentence of six months for assaulting a police officer was entirely appropriate. The applicant tried deliberately to make good his escape by kicking the police officer vigorously with two or three karate style kicks, which caused her to double up in pain. It is the responsibility of the courts to impose deterrent sentences on those who physically attack police officers, whose duty it is to protect the public."

87 Having regard to the relevant principles, I am of the view that the sentences of imprisonment imposed on the appellant were entirely within the range of sentences that could have been imposed in the exercise of the learned Magistrate's discretion.

88 With respect to the suspension of those terms of imprisonment, on the one hand the learned Magistrate had before him some evidence that the appellant had managed to abstain from alcohol in the past and that he was saying that he was motivated to do so now. On the other hand, the learned Magistrate had before him the evidence of the appellant's prior similar convictions indicating that the appellant had not stopped drinking when he was convicted of similar offences over the last few years, despite his protestations to the court through the author of a previous verbal pre-sentence report that he would do so. The learned Magistrate also had before him the information from the author of the psychological report to the effect that the appellant had been drinking heavily whilst on bail for these offences. There was no evidence before the learned Magistrate that the appellant would lose his job permanently if he was imprisoned. He would of course also been aware that a period of imprisonment would require the appellant to forego alcohol for the period of his imprisonment. Taking into account all the relevant circumstances it does not seem to me that the learned Magistrate erred in concluding that the seriousness of the offences, together with the appellant's personal circumstances meant that it was not appropriate to suspend the terms of imprisonment.