Regina v Knight

LEGISLATION CITED : Crimes Act 1900 (NSW) Malass (unreported) NSWCCA, 3 March 1998 Meissner v The Queen (1995) 185 CLR 132 CASES CITED: Myers (unreported) NSWCCA 13 February 1990 R v Boag (1994) 73 A Crim R 35 R v Sewell [2001] NSWCCA 2299 DECISION : Appeal against conviction dismissed. The application for leave to appeal against the severity of sentence in each case is allowed. Appeal dismissed with respect to the sentence imposed on count 4. Appeal allowed on count 3.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL BELL J HOWIE J SMART AJ

Wednesday 5 September 2001 60705/00- REGINA v John Adrian KNIGHT

JUDGMENT 1 BELL J: John Adrian Knight appeals against his conviction upon a count charging him that on 21 December 1995 at Ultimo in the State of New South Wales he detained Shane Pasfield with intent to hold Shane Pasfield for his advantage. The offence is created by s 90A of the Crimes Act 1900 (NSW) ("the Act"). He also seeks leave to appeal against the severity of sentences imposed upon him in respect of his conviction on this charge and a charge that on the same date he maliciously wounded Shane Pasfield. 2 The applicant was arraigned in the District Court at Sydney on 7 February 2000 on an indictment charging him with (1) wounding Shane Pasfield with intent to murder her; (2) in the alternative, malicious wounding with intent to prevent his lawful apprehension; (3) malicious wounding; and (4) detain Shane Pasfield for advantage. The appellant pleaded guilty to counts (3) and (4) and the Crown accepted his pleas in full discharge of the indictment. 3 On 13 March 2000 the appellant appeared for sentence before his Honour Judge Coorey. In respect of each count he was sentenced to a term of three years and six months imprisonment, to commence on 21 September 1999 and to expire on 20 March 2003. In each case a non-parole period of six months was specified, to commence on 21 September 1999 and to expire on 20 March 2000. 4 The notice of appeal signed by the applicant is dated 18 October 2000. It was not lodged within time. The applicant sought an extension of time in which to bring this appeal and set out a satisfactory explanation for the delay. The Crown did not submit that the extension should not be granted. I propose that the Court do so. 5 The appellant appeals against his conviction on two charges which he pleaded guilty upon indictment. There is discussion of the circumstances in which a court will set aside a conviction following a plea of guilty in Meissner v The Queen (1995) 184 CLR 132. In that case Dawson J observed at 157: "It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit that he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud."

6 In R v Boag (1994) 73 A Crim R 35 at 37 Hunt CJ at CL (in a judgment with which McInerney and James JJ agreed) considered the circumstances in which leave might be granted to withdraw a plea of guilty. After noting that leave will be granted in a case where it is shown that a miscarriage of justice has occurred, his Honour went on to observe that a miscarriage may occur in a variety of ways including where the applicant did not appreciate the nature of the plea entered, where there was no evidence upon which he could be convicted, or if he had not intended to admit that he was guilty or if his plea was induced by fraud, threats or other impropriety in a case in which he would not otherwise have pleaded guilty. The authorities on this topic were discussed in the recent decision of this Court in R v Sewell [2001] NSWCCA 299. 7 A statement of facts, together with a number of witness statements were in evidence before the sentencing judge. The appellant's counsel took issue with a number of assertions in the statement of facts. The sentencing judge resolved each of these issues in favour of the appellant. 8 The two charges to which the appellant pleaded guilty arose out of the same incident which occurred at the Broadway branch of the National Australia Bank on 21 December 1995. The victim, Detective Senior Constable Shane Pasfield, was then attached to the Fraud Enforcement Agency. She was investigating a number of fraudulently operated bank accounts. On this day Detective Pasfield attended at the Broadway branch of the bank, having been advised that a person was seeking to withdraw funds from a suspect account. 9 Detective Pasfield entered the bank as the appellant was making his way from the counter to the door. She produced her identification and asked the appellant to answer questions concerning a cheque deposited to an account. The appellant attempted to walk past her. There was a struggle between the two. During the course of the struggle the appellant took hold of Detective Pasfield and produced a knife from a bag which he was carrying. 10 Detective Pasfield felt a sharp pain at the back of her neck. She was cut by the knife. The appellant held the knife against the front of her throat, saying, "I'll kill her, I'll kill her, I've got a knife, no-one can come near me. I've got AIDS, I'm a psycho". The appellant forced Detective Pasfield outside the bank and onto the pavement. Another officer called upon the appellant to release Detective Pasfield. The appellant continued across the road and down the opposite pavement with Detective Pasfield in his grip. The pair were followed by her partner. After a short distance Detective Pasfield was released and the appellant was arrested. 11 Detective Pasfield sustained a wound to the back of her neck and lacerations. She was treated at the Royal Prince Alfred Hospital. 12 In support of the appeal against conviction, Mr Churches, who appears on the appellant's behalf, relied on an affidavit affirmed by the appellant on 17 August 2001. There was no objection to any part of that affidavit. The Court received it. The appellant was not required for cross-examination. 13 The Crown relied upon the affidavit of Aarne Tees sworn on 3 September 2001. There was no objection to any part of that affidavit. The Court received it. Mr Tees was not required for cross-examination. 14 In his affidavit the appellant states that he was charged on 21 December 1995 with various offences arising out of the incident at the bank on that day. On 14 January 1996 the Director of Public Prosecutions is said to have substituted four new charges for those originally brought. Relevantly, the appellant states that a charge of "detain for advantage" was preferred against him in substitution for an earlier charge described as one of "unlawful imprisonment". 15 The appellant goes on to set out a detailed chronology of events between 14 January 1996 and early February 2000 when the matter was fixed for trial. It appears that he was committed for trial to the District Court on four charges, including one of "detain for advantage" pursuant to s 90A of the Act on 8 May 1996. It is to be noted that in July 1996 the appellant was granted legal aid. This grant was withdrawn in September 1996, some three weeks prior to the date when the appellant's trial was fixed for hearing. The trial was subsequently adjourned. 16 The appellant suffered bouts of ill health which appear to have led to the further adjournment of his trial on a number of occasions. 17 The appellant was at liberty on bail for some of the period following his committal for trial. Bail was revoked on 21 September 1999 and he remained in custody thereafter. He states that on 17 December 1999, while in the Metropolitan Remand Centre, he fell and hurt his head. He goes on to say that in consequence of the fall he was in pain and unable to concentrate fully as his trial date approached. He said: "I was aware that the trial was set for three weeks and had 42 Crown witnesses. I had no money to pay for a barrister and no Legal Aid and as I was in ill health and unable to concentrate after the fall in prison, I decided that I could not run a trial of such complexity by myself.

A friend provided for Mr Tees to undertake a guilty plea, and I discussed with him the nature of the charges and the likely sentences if I pleaded guilty.

From my communication with Mr Tees I was under the impression that the sentencing judge would focus on the malicious wounding charge, and that the charge respecting detain for advantage would not be of any consequence. I was under the impression that the detain for advantage was like unlawful imprisonment, which only carried a maximum of two years. In fact, I was originally charged with unlawful imprisonment on 21 December 1995, but that charge was altered to detain for advantage. Mr Tees did not point out that detain for advantage carried a possible fourteen year sentence.

Mr Tees indicated that if I pleaded guilty to the simple malicious wounding and the detain for advantage the DPP would accept the pleas.

I decided to plead guilty as I could not undertake the trial on my own, but I did so on the basis that the detain for advantage was not a serious offence." 18 Annexed to the appellant's affidavit is a report of Doctors Ridley and Tohver of the Department of Medical Imaging at the Prince Henry Hospital. That report sets out the results of an examination conducted on 28 January 2000 apparently arising out of the appellant's injuries sustained in the fall. Relevantly, the report records, "Trauma one month ago. Now pain. The alignment of the spine is normal. There is no evidence of recent bony injury". 19 Mr Churches has contended that the appellant entered his plea upon the charge of detain for advantage while under a false impression as to the seriousness of the charge and while in a poor physical condition to make a decision of such importance. In written submissions it was put in this way: "As he did not have Legal Aid, the appellant had to weigh up whether to plead guilty or conduct his own defence. In the circumstances, he pleaded guilty, but would not have done so if properly informed by his barrister at sentencing as to the potential sentence for this offence, nor if he had been in proper health." 20 In supplementary written submissions Mr Churches contended that counsel for the appellant failed to adequately explain the ramifications of the plea and the maximum penalty in respect of the charge. 21 Little support is to be derived for those submissions from a consideration of the contents of the affidavit of Mr Tees. Mr Tees deposes to conferring with the appellant in early February concerning the forthcoming trial, which was then fixed for 14 February 2000. He goes on to note that he had a further conference with the appellant on 7 February. It was on this day that the agreement was reached that the Crown would accept pleas of guilty to the charges of malicious wounding and detain for advantage, in full satisfaction of the indictment. Mr Tees goes on to set out that on that same day he conferred with the appellant concerning the detain for advantage charge. Mr Tees states: "14. On the same day (7.2.00) I had a conversation with the Appellant concerning the 'Kidnapping' charge. I made him aware of the maximum penalty of twenty years if the wound to the female officer was considered a substantial injury and also of the maximum penalty of fourteen years, should the wound be considered as not being a substantial injury. I also expressed the opinion that I did not believe a court would hold that the wound was a substantial injury. I did not indicate what the penalty was likely to be other than to say that the Appellant was certain to receive a term of imprisonment. I also said that I would ask the sentencing judge to take into consideration a number of things, including the length of time the Appellant had spent in custody prior to sentencing.

15. The Appellant appeared at the District Court on 7 February 2000, he pleaded not guilty to charges of 'Malicious Wounding with Intent to Murder' and to 'Malicious Wounding with Intent to Prevent his Lawful Apprehension'. The Appellant entered pleas of guilty to charges of 'Malicious Wounding' and 'Kidnapping'. The Appellant was remanded for sentence on 13 March 2000.

16. The Common Law offence of False Imprisonment had never been an option and had never been part of the Indictment. It was not discussed during any of the conferences I had with the Appellant.

17. The Appellant was well aware of the charges he was pleading to and the penalties which related to each charge. He indicated this in a letter he wrote to me, dated 17 February 2000, where in paragraph 3 he refers to being worried about the section 90A charge. That letter is attached to and marked 'Annexure A'." 22 It is to be noted that in the letter annexed to the affidavit of Mr Tees dated 17 February 2000, the applicant states: "I am worried about the 'detain for advantage' (sec 90A) part of my guilty plea, although I have found a case in A Crim R Vol 75 (1994) page 309 - 'C' who had pleaded guilty to 4 charges under sec 90A plus armed robbery. He had been eleven months in custody and got a deferred sentence with a 5 year good behaviour bond! Surely the DPP won't try to claim that Det Con. Pasfield's neck scratch was a 'substantial injury'? - taken to mean more than just a 'minor or slight injury' [see R v Rowe A Crim R 89 (1996/97) p 467]." 23 Mr Churches draws attention to the circumstance that the letter annexed to Mr Tees' affidavit appears to have been prepared some ten days after the plea was entered. It is to be borne in mind that no application was made before the sentencing judge for the appellant to withdraw his plea of guilty to count (4) in the indictment. 24 The evidence falls well short of establishing that the appellant did not understand the nature of the charge of detain for advantage by reason of any injury sustained in the fall on 17 December 1999. The report of Doctors Ridley and Tohver provides no basis for the assertion that the appellant's physical condition was such as to affect his ability to appreciate the nature of the charge. Mr Churches did not press this aspect of the challenge in the course of oral submissions. 25 Even if I were of the view that the appellant had entered his plea upon a mistaken understanding that the offence of malicious wounding would be viewed by the sentencing judge as a more serious offence than that of detain for advantage, I am not persuaded that the appellant has established that his conviction upon the latter charge should be set aside. 26 I should add I am not, in the light of the contents of the affidavit of Mr Tees, satisfied that the appellant did not know the maximum sentence available in relation to the s 90A charge. 27 The evidence before the sentencing judge provided a proper basis upon which the appellant might be convicted of the offence of detain for advantage. The appellant does not claim that he is not guilty of that offence. 28 I am not persuaded that the appellant has established that he did not understand the nature of the charge to which he pleaded guilty or that he did not intend to admit his guilt of it or that, for any other reason, there has been a miscarriage of justice such as to make it appropriate for this Court to set aside his plea. 29 I would propose that the appeal against conviction be dismissed. 30 There is also an application for leave to appeal against the severity of the sentences imposed in respect of both the count of malicious wounding and the count of detain for advantage. 31 Malicious wounding carries a statutory maximum of seven years imprisonment. A charge of detaining a person for advantage contrary to s 90A of the Act, attracts a maximum penalty of imprisonment for twenty years or, if it is proved to the satisfaction of the judge that the person detained was thereafter liberated without having sustained any substantial injury, to imprisonment for fourteen years. The case proceeded upon the basis that it was common ground that Detective Pasfield had not sustained any substantial injury and, accordingly, that the maximum penalty was one of fourteen years imprisonment. 32 The sentencing judge took into account that the appellant had been in custody (as a remand prisoner) for a total of one year thirty eight weeks and four days as at the date he stood for sentence. He had come into custody following revocation of his bail on 21 September 1999. His Honour imposed concurrent sentences backdated to that date. 33 The appellant had been in custody in respect of these offences alone for broken periods prior to 21 September 1999. In all, he had spent one year and 98 days as a remand prisoner prior to that date. In Mr Churches' submission, when this period of custody is taken into account, it can be seen that the effective head sentence in each case was of the order of four years nine months and one week. 34 The appellant was aged fifty-six years at the time he stood for sentence. He was aged fifty-one or thereabouts at the time of the commission of the subject offences. His criminal record dates back to 1993 and included offences involving the making of false statements, aiding and abetting the obtaining of a passport by false means, and opening and operating false bank accounts. In August 1994 he had been sentenced to imprisonment for six months in relation to the passport and false bank account charges. 35 A report from Dr Thomas Clark dated 2 February 2000 was in evidence upon the sentence hearing. That set out that the appellant had obtained a Bachelor's Degree in Economics in 1967 from the University of Adelaide. Thereafter he had worked with two trustee companies for a period of some fifteen years. He obtained further tertiary qualifications in 1985, namely a Diploma of Business Studies from the University of New England. 36 Dr Clark diagnosed the appellant as suffering from bi-polar disorder. In his view, the appellant was somewhat more settled at the date of report than he had observed him to be on earlier occasions. The appellant had indicated a willingness to attend Dr Clark's rooms as a patient upon his release. In the doctor's view, the appellant would require regular psychiatric supervision following his release. 37 It is to be noted that special circumstances were found in this case and that the sentences imposed by his Honour involved a departure from the statutory proportion as between head sentence and non-parole period. Having regard to the psychiatric evidence, this was plainly an appropriate course. 38 The effect of his Honour's sentence, in terms of the specification of the non-parole period, was that the appellant became eligible for release to parole within one week of the pronouncement of sentence. 39 These offences were objectively of a most serious character. The appellant held a knife to the throat of the policewoman, who was engaged in investigating a crime for which he was a suspect. 40 During the course of the incident he made threats to her. It must have been from her perspective a terrifying experience. 41 In Malass (unreported) NSWCCA 3 March 1998, Sperling J (in a judgment with which Wood and Smart JJ agreed) emphasised that there can be no complaint in the case of the imposition of a sentence at the high end of the scale in a case involving an assault upon a police officer acting in the execution of his or her duty. In such cases there is a need to give full weight to the objective of general deterrence. There are passages to the like effect in Myers (unreported) NSWCCA 13 February 1990. 42 The submission that the sentence imposed on the charge of detain for advantage is manifestly excessive in that it falls outside the range of the exercise of discretion, in my view cannot be maintained having regard to the objective criminality of the offence. 43 With respect to the sentence imposed on the charge of malicious wounding it is to be noted that if consideration is taken of the broken periods of custody prior to 21 September 1999 it is an overall sentence close to five years in respect of an offence which carries a maximum of seven years and in respect of which the applicant pleaded guilty, albeit at a very late stage. If it stood alone I would nonetheless consider that a challenge that the sentence was manifestly excessive, in the sense that it fell outside the range of discretion, might not be made good. However, it is to be considered together with the charge of detain for advantage. There is a measure of overlap in the circumstances of aggravation relied upon by the Crown in the two counts. 44 In the light of the observations in Pearce v The Queen [1998] HCA 57; 194 CLR 610 I consider that his Honour erred in imposing like sentences on these two counts. I would propose that the applicant be granted leave to appeal against the severity of the sentence imposed with respect to count 3. In the circumstances of this case I would substitute a fixed term of 12 months imprisonment. It is necessary that reasons be given for the imposition of a fixed term of imprisonment without the specification of a non-parole period. The sentence imposed on count (4) was backdated to 21 September 1999 and a non-parole period of six months was specified which expired on 20 March 2000. I propose that the sentence be expressed to commence on 21 March 1999 and expire on 20 March 2000. A non-parole period in the circumstances would be of no utility. 45 The orders that I propose, are as follows: 1. the appeal against conviction be dismissed; 2. the application for leave to appeal against the severity of sentence in each case be allowed; 3. the appeal be dismissed with respect to the sentence imposed on count 4, and the sentence imposed in respect of that count be confirmed; 4. the appeal with respect to count 3 be allowed; 5. quash the sentence imposed in the District Court on count 3. 6. In lieu thereof, I would impose a fixed term sentence of 12 months imprisonment to date from 21 March 1999 and to expire on 20 March 2000. 46 HOWIE J: I agree. 47 SMART AJ: I agree. 48 BELL J: The orders of the Court will be as I have proposed. **********

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