R v BDC [2018] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION: R v BDC [2018] QCA 132

PARTIES: R v BDC (applicant)

FILE NO/S: CA No 54 of 2018 / DC No 475 of 2017

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Conviction)

ORIGINATING COURT: District Court at Ipswich – Date of Conviction: 13 October 2017 (Lynch QC DCJ)

DELIVERED ON: 22 June 2018

DELIVERED AT: Brisbane

HEARING DATE: 15 June 2018

JUDGES: Sofronoff P and Philippides JA and Henry J

ORDER: The application for an extension of time to appeal against conviction is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the applicant pleaded guilty to one count of procuring a young person for carnal knowledge – where the applicant was sentenced to four years imprisonment, to be suspended after 12 months of the term was served, and operational for a period of four years – where the applicant lodged an application for an extension of time to appeal against her conviction – where the basis of the applicant’s proposed appeal is that her plea of guilty was not voluntarily entered – where the applicant alleged that she was forced or induced to enter a plea of guilty on account of advice allegedly given to her by her former legal representatives – where the applicant seeks to appeal her conviction on the basis that she believed she was not guilty of the offence – whether there is any good reason to account for the applicant’s delay in bringing the appeal – whether it is in the interests of justice to grant the applicant an extension of time to appeal against her conviction / Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied / R v Liberti (1991) 55 A Crim R 120, applied / R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL: The applicant appeared on her own behalf / C N Marco for the respondent

SOLICITORS: The applicant appeared on her own behalf / Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Philippides JA and the order her Honour proposes.

PHILIPPIDES JA: On 13 October 2017, the applicant was arraigned and entered a plea of guilty to procuring a young person for carnal knowledge. She was sentenced on 29 January 2018 to four years imprisonment suspended after 12 months of the term was served, operational for a period of four years. The period of 108 days spent in presentence custody was declared as time served under the sentence.

Application for extension of time

The applicant lodged an application for an extension of time in which to appeal against conviction on 16 March 2018, the appeal against conviction being lodged some four months out of time.

In considering whether an extension of time to appeal should be granted, it is relevant to have regard to whether there is any good reason shown to account for the delay and to consider overall whether it is in the interests of justice to grant the extension.¹ As to the matter of delay, the applicant sought to explain the delay in filing the notice for extension of time by asserting that she was not advised of the time for appealing, notwithstanding that an application to appeal against sentence was made in time.² A failure to explain delay may not be fatal, however, if the interests of justice favour the granting of the extension.

In the present case, the basis of the applicant’s proposed appeal is that she was compelled to enter a plea of guilty on account of the conduct of her former legal representatives, and representations they made to her, concerning the likely sentence to be imposed.

Relevant principles concerning the setting aside of a plea of guilty

The following principles are relevant to a consideration as to whether a plea of guilty ought to be set aside:

A plea of guilty, entered by a person who is of sound mind and understanding exercising a free choice in their own interests, will not be set aside on appeal unless the applicant demonstrates that a miscarriage of justice has occurred.³

A person may enter a plea of guilty even though they do not believe that they are guilty of the offence for pragmatic reasons, such as, to avoid worry, inconvenience or expense, avoid publicity, to protect family or friends, or in hope of obtaining a more lenient sentence. But a plea entered on such a basis will not be set aside unless a miscarriage of justice is shown.⁴

A miscarriage of justice may occur where it is demonstrated that the applicant did not understand the nature of the charge, or did not intend to admit guilt, or if, upon the facts admitted by the plea, the applicant could not in law be guilty of the offence, or the plea was induced by intimidation or improper conduct or fraud.⁵

Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.⁶

Applications to set aside a conviction on the basis that a plea of guilty should be set aside are approached with “caution bordering on circumspection” because of the high public interest in the finality of legal proceedings and the principle that a plea of guilty by a person in possession of all the facts is normally taken to be an admission of each of the necessary legal elements of offence.⁷

Consideration

The applicant filed written submissions and additionally made oral submissions before this Court. The crux of the applicant’s submissions was that the plea of guilty was not voluntarily entered but rather was forced or induced by her counsel’s conduct. The conduct relied upon is advice said to have been given that:

the judge and jury would take pity on her daughter;

the applicant could be sentenced to “life”;

the applicant should plead guilty to the “lesser charge”; and

the most the applicant would receive on sentence would be “7 to 12 months”.

The applicant further asserted that she was not guilty of the offence and that she believed that she was not guilty of the offence, but she accepted that she did not prevent the sentence from proceeding. It is also to be observed that the applicant had been arraigned and had entered a plea of guilty some three and a half months before she was sentenced. As the respondent submitted, the applicant had ample opportunity in the period before sentence to file or make an application to vacate her plea of guilty but no such application was made. Furthermore, the sentencing judge provided the applicant with an opportunity to confer with her counsel after submissions were completed and before sentence was passed. Nothing was raised concerning the plea as a result of that opportunity.

On the day of the applicant’s arraignment, the prosecution presented a new indictment charging the applicant with a less serious offence than had previously been preferred. The indictment that was originally before the Court charged the applicant with stupefying to commit an indictable offence and rape. The maximum penalty for both of those offences is life imprisonment. Advice that the applicant could be sentenced to life imprisonment is rationally to be understood in that context, particularly given counsel’s intervention at sentence to draw attention to the plea to the lesser offending.

At sentence, the applicant’s counsel submitted for a sentence of three years imprisonment with release after nine months imprisonment. The prosecution contended that an appropriate sentence was one of four years imprisonment with one third required to be served. His Honour imposed the head sentence urged by the prosecution but suspended it after 12 months. Given the declaration made as to 108 days (some three and a half months) of presentence custody being time served under the sentence, a release date of 12 October 2018 was fixed.

The respondent submitted that if the representations of counsel to the applicant as to sentence related to the period of time that the applicant would serve in actual custody, then the outcome was in accordance with advice, that is, she would receive a sentence of actual imprisonment of between seven and 12 months. Such advice as to the possible sentence was consistent with the submissions made by counsel on sentence, in the applicant’s presence.

At sentence, a letter written by the applicant was tendered to the sentencing judge where she requested that an order for release be made on the day of the sentence. The applicant made complaints regarding her treatment by another prisoner while in custody on remand. The applicant also expressed remorse for her conduct towards the complainant, which is not consistent with the applicant’s belief regarding her guilt now as expressed in the outline.

The submissions made by the applicant to the effect that she did not believe herself guilty of the offence are not determinative of whether a miscarriage of justice has occurred. As the respondent submitted, if the plea of guilty was pragmatic and entered in the exercise of her free will (which is consistent with the tenor of her submissions and interventions at sentence as to the severity of the sentence imposed), then, despite the fact that she might not truly consider herself guilty of the offence, a miscarriage of justice will not be deemed to have occurred.

What is evident from the transcript of the sentencing submissions and the sentencing remarks is that the applicant voiced her disagreement on several occasions. The dissent, however, does not suggest a miscarriage of justice occurred. The applicant voiced her dissent after the complainant read out her victim impact statement. Her disagreement was with the complainant’s statements that suggested that the complainant and the applicant ceased to have any relationship following the offence, which, as the applicant’s counsel clarified, was not the case.

The sentencing judge commenced his remarks by telling the applicant the sentence that he would impose. The applicant interrupted his Honour in his sentencing remarks when a comment suggested that she knew that her daughter was not consenting to the act of intercourse. The applicant’s counsel and the prosecutor clarified that matter with his Honour, however, and the sentence proceeded on the agreed factual basis, which was not that the applicant knew prior or at the time the sexual act was occurring, that the complainant did not consent. The applicant disputed during the delivery of his Honour’s remarks that she gave her daughter alcohol, which, however, was contrary to the agreed facts. The applicant also corrected his Honour when he incorrectly stated her age.

Of more import is an assertion by the applicant during the sentencing remarks that she entered the plea of guilty because she was “forced”. The applicant did not voice her dissent as to the nature of the plea any earlier despite her earlier interventions. His Honour nevertheless explained that the applicant had the right to make an application to vacate her plea of guilty but, until such time as that occurred, he was obliged to sentence her. The applicant’s response was not to ask for such an application but, rather, to protest against the sentence imposed on her.

The applicant also referred to a further telephone call with the complainant following the pretext call. That telephone call appears not to have been recorded. It is unclear whether the applicant had raised the existence or contents of this call prior to the writing of her outline or to her former legal representatives. In any event, it has not been demonstrated that the advice the applicant’s counsel was said to have given the applicant regarding the contents of the pretext call could be the subject of legitimate grievance.

In my view, the applicant would not enjoy any prospects of success in her contentions that her plea was not entered by free choice nor that any miscarriage of justice had resulted from the plea being made.

Order

The application for an extension of time to appeal against conviction is refused.

HENRY J: I have read the reasons of Philippides JA. I agree with those reasons and the order proposed.

Footnotes

1. R v Tait [1999] 2 Qd R 667 at [5]. ↩

2. The application to appeal against sentence was lodged on 22 February 2018 but was abandoned. ↩

3. Meissner v The Queen (1995) 184 CLR 132 at 141. ↩

4. Meissner v The Queen (1995) 184 CLR 132 at 141, 157. ↩

5. Meissner v The Queen (1995) 184 CLR 132 at 157. ↩

6. Meissner v The Queen (1995) 184 CLR 132 at 143. ↩

7. R v Liberti (1991) 55 A Crim R 120 at 122. ↩