R v Young [2004] VSCA 166

5. The "conviction" application is an unusual one because, as we have previously noted, the conviction was recorded following a plea of guilty. Within a period of some two weeks of the entering of that plea on 29 October 2001, the applicant informed the court that he wished to change his plea to "not guilty". His application to do so was entertained by Judge Robertson in the County Court on 19 December 2001; in the course of which the applicant gave evidence and was cross-examined. On 21 December 2001, the judge refused the application and gave reasons for doing so.

8. The applicant has appeared before this Court in person. He challenges the conviction on the basis that the trial judge was in error in refusing the application for leave to change the "guilty" plea to one of "not guilty", and that, accordingly, a miscarriage of justice has occurred. His application for leave to appeal against sentence is founded upon his contention that the sentence imposed was manifestly excessive; and is rendered so largely because his Honour placed too much emphasis or weight upon the purpose of general deterrence for reasons which we will later identify. It should be said that the applicant presented his arguments to this Court lucidly and intelligently; and with commendable brevity. He clearly understands the function of this Court as an appellate court; namely that we do not have an unfettered right to discharge afresh the functions committed to the trial judge; nor do we have an unfettered power - i.e. in the absence of appellable error - to interfere with discretionary orders made by the trial judge. The applicant, accordingly, developed his submissions in line with these principles.

11. It is necessary to say something briefly about the facts which led to the conviction and sentence. On its face the armed robbery was a nasty one. The robber entered the bank near closing time in the afternoon of 19 April 2000 wearing a disguise "wig" and glasses, with face powdered and carrying what turned out to be imitation firearms and explosives. He also carried live ammunition. He approached one of the tellers and handed to her a note in cryptic form which asserted:

3. No buttons, no alarms or I'll start shooting people.

4. Do exactly as I say or I will throw the explosive device into the bank when I leave."

Unsurprisingly, the teller and other bank staff affected were very frightened. Their victim impact statements are a typical reminder of the lasting effect which an armed robbery has on its victims. When the manager came into the bank chamber, he, too, was confronted by the robber demanding and threatening:

"This is the real thing; I want the money; I've got a bomb; I want it out of every unit; Give it to me, or I'll shoot you."

Ultimately the manager gave instructions to teller staff to make over the cash; and a sum of $4,390 was stuffed into a bag provided by the robber, who then fled from the bank, into a lane at the rear of the premises and into an outside toilet, where he changed his clothes and placed the money, disguises, and "weapons" into a back-pack.

21. There has never been any dispute that the applicant was the robber. He had driven his car from his home in Dunolly (to the north of Melbourne) down the highway to Melbourne to effect the robbery. He was apprehended by a police officer who found him in the toilet and who chased him when he tried to evade capture. He was, in essence, captured "red-handed" with the back-pack containing the money and other items; and - on the same night - made full confessions to the police. His confessional record of interview with the police also contained statements which were the seeds of his later submission to the court that there was justification for his conduct which would or might provide a defence to the charge alleged against him. He told the police that he had, over a lengthy period, suffered "duress and abuse" from various public authorities and he felt that:

"if the system and society could throw me on the scrap heap and give me no genuine assistance as an unemployed person - treat me as fodder, and ... if I could not expect a decent and fair and reasonable living wage and a job, ... I had to live somehow, ... I understand the circumstances of how the law views that, but I have a very clear understanding that I think society owes me an obligation as a victim."

"You may call it an armed robbery. I would say ... that society has an obligation to me, and that there's another way to look at it."

He specifically referred to the fact that he had acted "under duress' imposed upon him by claims made by the Social Security Department which was "deducting money from unemployment benefits". When asked finally by the police whether he knew that what he had done was wrong, the applicant replied:

"I understand the situation, and I would say its equally wrong for me to have been victimized and treated unjustly over the years. It's equally wrong for me to be unemployed. It's equally wrong for me to have no living wage and receive no assistance from people that should have been offering me assistance in regard to my employment and social welfare. I'm well aware that other people might consider that wrong. I'm well aware of the way that the legal system will look at it. And I can only say that ... if I were asked 'do I think that it is wrong to do that', I may or may not say 'yes', or I may or may not say 'No' depending upon the circumstances. But I think that it is quite unreasonable for me to be in the situation that I am in today, and it's unreasonable for a person to have to live their life in the way I've had to live."

29. The interview concluded with the applicant telling the police that he had spoken to a solicitor, and that the solicitor had suggested to him that he should plead "guilty" to "armed robbery". He said:

"that's the course that I'm prepared to take at this stage."

That view appears to have prevailed on 29 October 2001 when, represented by a barrister experienced in the criminal law, the applicant pleaded "guilty" in the County Court. He admitted previous convictions. Having regard, however, to the material before the court at that time, it was not surprising that plea in mitigation and sentence was adjourned to await further psychiatric and psychological assessment. In the meantime, however, the applicant gave notice that he wished to apply to change his plea.

34. When, however, the matter came back before the sentencing judge on 19 December 2001, upon the application for leave to change the plea, the applicant appeared in person, as he has in this Court. Again, it appears (and the judge so stated) that the applicant presented reasonable and logical arguments which were based on "unjust oppression by public authorities" which had driven him to commit the crime with which he was charged. The judge, in his ruling, referred to the fact that it was this argument which was central to the "proposed defence" which the applicant wished to raise. The judge noted that the applicant was aware, and conceded, that the available psychiatric evidence would not sustain a defence of "mental impairment"; and that the experienced psychiatrists who had reported to the court (namely Dr Walton and Dr Barry Walsh) expressed the opinion that the applicant was, and had been at all times, fit to plead.

37. The judge who entertained the "change of plea" application appears to us to have applied appropriate principles in the determination of the matter before him. In the context of the material before him - which included the applicant's own evidence, the transcript and records of the previous proceedings, and the medical and psychiatric reports, the judge concluded that he was:

" ... well satisfied that at the time of entering the plea of guilty to the count of armed robbery, [the applicant] was in possession of all the relevant facts. He was represented by counsel well experienced in criminal law, counsel who - as [he] concedes - was willing to run this criminal proceeding as a trial if [the applicant] so desired."

After adverting to other matters, the judge went on:

"I am well satisfied that on 29 October 2001 when he entered his plea of guilty to the count of armed robbery that the [applicant] was fully aware of the factual and legal matters bearing on the count ... This court takes the view that on the particular and ... rather unusual set of facts in this case, the [applicant] has not satisfied the grounds required for such an application to succeed."

43. Following this ruling, his Honour nominated 7 February 2002 as the date for plea and sentence. The applicant's bail was extended. Thereafter, due to a variety of circumstances, the date for plea and sentence was extended to 2 September 2002, when the applicant was again represented by counsel. Ultimately, it was on 17 October 2002 that his Honour sentenced the applicant to a term of imprisonment to which we have referred, namely five years with a non-parole period of three years six months.

46. In this Court, the applicant has submitted that the denial of his right to change his plea to "not guilty" occurred in circumstances which amount to a miscarriage of justice within the meaning of s.568 Crimes Act 1958. He submits that we should , therefore, set aside the conviction recorded against him, and remit the matter for trial by jury. In the event that the Court is not prepared to allow his appeal against conviction, he says that the sentence imposed by the judge should be set aside and a lower sentence imposed.

49. The applicant recognises, in respect of the conviction application, that this Court's capacity to allow a conviction appeal against a conviction recorded upon a plea of guilty is limited. Indeed authority precludes this Court from doing so except in exceptional circumstances; all the more so where the court below has exercised its discretion to refuse to allow the change of plea.[1] In R. v. Murphy at 187-8, Herring, C.J. and Adam, J. said:

"A plea of guilty duly recorded provides the strongest evidence of guilt. Accordingly, although this Court may grant leave to appeal on any ground which appears to it "to be a sufficient ground of appeal" (s.567(c) Crimes Act), on principle one would expect that in such a case leave would be refused save in exceptional circumstances where the plea of guilty itself has been induced by material mistake or the like. It has been so held in decisions both in England and in this State.

These principles have been regularly followed in this Court.

54. The applicant, undaunted by this line of authority, contends that we should nevertheless set aside the conviction recorded against him. It is our view that the applicant's plea of guilty had matured into a conviction when on 29 October 2001 the judge of the County Court "accepted" it by releasing the applicant on bail to attend thereafter for plea and sentence. On any view, the applicant now stands convicted on the count of armed robbery, and it is that conviction against which he seeks leave to appeal.

57. The applicant's submission to this Court was based on a refinement of the submissions which he had made to the judge below. He submitted that the judge had failed to grasp the impact of the material put before him which, when properly analysed, revealed a mental state upon which a jury could reasonably conclude that, at the time of the robbery, he did not have the mens rea sufficient to constitute the crime with which he had been charged. He submitted that the evidence of Dr Walton should have led the judge to conclude that, at the relevant time, he was in what he described as a "twilight state" which, as we understand it, was similar to a state of dissociation. He contended that the judge should have concluded that a jury could find that, at the time of the robbery, he was acting as, in effect, an "automaton". Notwithstanding that the judge was entitled to find, on the evidence, that he was not psychotic, he submitted that he had nevertheless failed to appreciate the nature and extent of the applicant's personality disorder which he described as a "prolonged stress-duress disorder". The applicant further submitted to us that the judge adopted a "biased view" of his condition which was reflected by his calling for a further report from an independent psychiatrist.

60. In our view these submissions - whilst attractively presented - cannot destroy the validity of the findings which the judge made - and to which we have earlier referred - that at the time when the applicant entered his plea of guilty he was well aware of all the relevant matters which affected his decision; and fully aware of the factual and legal matters which bore upon the charge of armed robbery to which he was entering a plea. In short he was fit to plead and knew the consequences of doing so, notwithstanding his contention that at the time of the robbery he had lacked the necessary intent. As the judge noted, he was represented by experienced counsel who, as the applicant himself said, advised but exerted no pressure. There is, in our view, nothing in the material which has been put before us which suggests a miscarriage of justice in the procedure or proceedings which resulted in the applicant's conviction; and - thus - no basis demonstrated for setting aside that conviction and remitting this matter for trial. Accordingly we refuse the application for leave to appeal against conviction.

63. In support of his application for leave to appeal against sentence, the applicant submitted that the sentence imposed upon him, both as to head sentence and minimum term, was manifestly excessive. He submitted that it should be seen by this Court to be so by reason of the fact that the judge placed too much emphasis on the principle of general deterrence in circumstances where that sentencing purpose should have been moderated to take account of his confused mental state.

66. We have carefully considered his Honour's sentencing remarks in the light of the applicant's submissions. We can see no justification for the contention that his Honour has not sensibly moderated his sentencing disposition to take account of the factors to which the applicant has referred. The applicant, we think, should understand that the sentence which he received is an extremely moderate one for armed robbery, serious as this one was. Experience in this Court demonstrates that robbers who, armed with weapons, real or fictional, walk into banks and as a consequence of inspiring terror achieve their objective of monetary gain, generally receive sentences much heavier than the one imposed upon this applicant. He should, we think, recognise that leniency has been extended to him, and no doubt for a variety of factors. Notwithstanding his disadvantages, he is an intelligent man who, so references put before the trial judge would make it appear, is community-minded. We would like to think that when these matters are behind him he can find a suitable niche within the community where his talents can be properly employed and where he is no longer "at war" with the community.

69. For the reasons we have given, the application for leave to appeal against sentence must also be refused.

72. The formal orders of the Court will be that the applications for leave to appeal against conviction and sentence are refused.

[1] See R. v. Forde [1923] 2 K.B. 400; R. v. Cooling [1990] 1 Qd.R. 376; R. v. Liberti (1991) 55 A.Crim.R. 120; R. v. Murphy [1965] VicRp 26; [1965] V.R. 187; R. v. Kardogeros [1991] VicRp 19; [1991] 1 V.R. 269; R. v. Tait [1996] VicRp 48; [1996] 1 V.R. 662; R. v. Reed [2003] VSCA 95.