Regina v O'Brien [2003] NSWCCA 400 | Case summary

1 GROVE J: On 10 December 2001 the appellant was presented for trial before Shadbolt DCJ and a jury upon an indictment containing thirty one counts. Four counts of offence contrary to s29D of the Crimes Act 1914 (Commonwealth), three counts of offence contrary to s178A of the Crimes Act 1900 and twenty four counts of offence contrary to s178BA of the Crimes Act 1900 were charged. A convenient summary of the prosecution allegations can be extracted (with slight amendments) from his Honour's remarks on sentence: "The circumstances giving rise to these charges, although variously described by sections of both State and Commonwealth legislation, in fact arose from the one criminal enterprise by the prisoner, and they represent the various means by which these crimes were committed. In 1991 the prisoner became the effective customs agent to four companies, Choice Sales Pty Ltd, Wilfred Owens Sales Pty Ltd, Classic Cosmetics Pty Ltd and Botron Pty Ltd. He did this by not disabusing the directors of these companies of their false impression that he was a registered customs agent, and by promises of cheaper freight, which promises were performed. He was able to do this by giving each company a Nature 10 form showing the correct duty payable and by giving the Customs Department a Nature 10 form relating to the same shipment, but which fraudulently represented the nature of the cargo so that a Customs duty exemption was claimed. Each company paid the duty in accordance with the Nature 10 which O'Brien had prepared. Payments were made either to him or the Department of Customs. Those payments made to him were pocketed and the cheques made payable to Australian Customs were fraudulently endorsed to an account in his brother's name. The first four counts represent in total 93 such fraudulent acts. The precise number included in each count is set out in the annexures to the Crown's short facts, exhibit A on sentence. In all $479,093 was obtained by the prisoner between January 1991 and January 1994." 2 The appellant pleaded not guilty to all charges and evidence proceeded to a point where it is said that the only material outstanding in the Crown case was the evidence of four witnesses, one of whom was the appellant's brother. However, counsel then appearing for the appellant informed the learned trial judge that he had instructions to enter pleas and the jury returned to court. The appellant was re-arraigned and pleaded guilty to all counts. It is convenient to observe that his Honour had been informed that these pleas of guilty followed the giving of written instructions to counsel and that upon sentences being announced his Honour sought to confirm the appellant's understanding of their effect and the appellant stated that he understood "completely". No suggestion emanated from him that the pleas of guilty were offered other than in a voluntary exercise of the appellant's own decision-making capacity. I mention those matters in the light of what is now sought to be advanced. 3 On counts 1 to 4 the appellant was sentenced to imprisonment for three and half years with a non parole period of two years and eight months commencing on 3 October 2001, this non parole period will expire on 2 June 2004. On counts 5 to 10 the appellant was sentenced to imprisonment for three years with a non parole period of two years commencing on 3 October 2001, thus the non parole period expired on 2 October 2003, and on counts 11 to 31 the appellant was sentenced to imprisonment for two years with a non parole period of sixteen months commencing on 3 October 2001, thus both head sentence and non parole period in respect of these counts are expired. 4 Although, as I have noted, the appellant was represented by counsel at trial and in the sentencing proceedings, he has conducted the appeal in person. His grounds of appeal were expressed as follows: "1. Judge Shadbolt erred in revoking the appellant's bail. 2. Judge Shadbolt's diagnosis of the appellant's medical condition was incorrect. 3. Judge Shadbolt's assessment of why the appellant changed his plea to guilty was not substantiated by fact. 4. The revocation of the appellant's bail was used by Judge Shadbolt as a means of coercing the appellant into pleading guilty to crimes which he did not commit. 5. Crown failed to disclose to the court and the appellant that the NSW Police Service had informed prosecution witnesses that the appellant had a serious criminal record. The appellant had no criminal record. 6. Crown failed to disclose to the court and the appellant that prosecution witnesses, Mr S. Hobson, Mr G. Higgins and Mr. G. O'Brien, participated in a criminal multiple-object conspiracy with a person known to the appellant as Mrs K.A. Leclere, to pervert the course of justice." 5 In accordance with the usual registrar's directions the appellant filed a written outline of his submissions. At the hearing of the appeal the Court received, without objection by the Crown, copies of certain medical records and the appellant orally addressed the Court. From none of these sources can be drawn any material to support grounds 5 and 6 in particular. Reference was made to some transcript of evidence of Mr Hobson but this was asserted to demonstrate the innocence of the appellant in respect of certain goods imported from Singapore and exported to New Zealand and did not relate to any allegation of participation in some conspiracy as asserted in ground 6. For these reasons alone, grounds 5 and 6 must fail. 6 Grounds 1 to 4 can be dealt with together as they relate to aspects of the appellant's complaints focussed upon circumstances leading up to his pleas of guilty upon re-arraignment on 8 October 2001. There has been no formal application to the Court for leave to withdraw the pleas of guilty however as the appellant has proceeded without legal assistance, I consider the desirable course is to examine the appellant's complaints and determine whether it appears that there is any basis for considering grant of some form of relief. In Rowe v Australian United Steam Navigation Co Limited 1909 9 CLR 1 @ 6 Griffiths CJ observed "…… the right of every man to a fair hearing before he is condemned lies at the root of the tree of justice" and the issue raised in the combined grounds advanced by the appellant is really whether in fact he has been afforded such a fair hearing. The answer to the essential question requires some exploration of the history of the proceedings. 7 The common theme of the appellant's contentions in support of grounds 1 to 4 is that his condition (s) of health inhibited his ability to cooperate with lawyers in the conduct of his defence and tainted the decision that he eventually made to plead guilty to all the counts in the indictment. 8 The appellant was first scheduled to be presented for trial commencing on 19 April 1999. On 9 April the hearing date was vacated after, inter alia, production of medical certificates and statements of the appellant relating to what he understood to be the afflictions of disease. In due course a fresh date for hearing on 30 August 1999 was fixed. This was vacated on 12 August in connection with circumstances of legal aid and legal representation. The next scheduled commencing date was 8 May 2000. On that day the appellant produced reports from Associate Professor Richards dated 3 and 8 May 2000. The former reported that on 2 May the appellant had complained of a collapse which, apparently upon enquiry, was elaborated as "vague, systemic symptoms, over the past few weeks" attributed by the appellant to a viral illness. A family history of ischaemic heart disease was noted which provided an obvious signal for further investigation. Diagnosis was limited at that point to vasovagal syncope, a fainting. The latter report mentioned diffuse coronary artery disease and left ventricular dysfunction and opinion was expressed that it would be, by reason of the need for medical stabilization, unsafe for the appellant to appear in Court until July 2000 at the earliest. Vacation of this further hearing date was not opposed by the Crown. 9 The trial commenced on 5 February 2001 and proceeded until 19 February 2001 when the appellant was admitted to Westmead Hospital, however a letter of that date from Professor Richards describes the findings on examination and concludes that there was no electrocardiographic evidence of fresh myocardial ischaemia or infarction and he opined that the appellant would likely to be fit to resume appearance in Court on 26 February 2001. Nevertheless the appellant's representatives applied to the presiding judge for a discharge of the jury and this was granted. 10 A new trial date of 14 May 2001 was fixed. This was altered to 4 June 2001 on Crown application relating to convenience. The change was not opposed. For various reasons, further dates were fixed and a trial began on 13 August 2001 but was terminated on 27 August owing to the illness of the presiding judge. 11 A final fixture saw the trial commence before Shadbolt DCJ on 10 September 2001. It can be observed that on 8 June 2001 a Dr Paul Clouston, a neurologist, had reported to Professor Richards on a battery of tests advising that he could "see no reason why (the appellant) cannot attend Court as serious neurological cerebro vascular disease has been eliminated". He also remarked "incidentally there was a small cerebral infarct (very old) seen in the right caudate nucleus. This is from ischaemic cerebro vascular disease of the small vessels and is most certainly related to hypertension and smoking." The appellant was advised to give up cigarettes. The actual image report shows that the reference to right caudate nucleus is an error and it should read left caudate nucleus. The appellant drew attention to the discrepancy but nothing relevant to the appeal turns upon what is patently a slip in the preparation of the report. 12 On 18 September the Court was told that the appellant had become ill and had been taken to hospital. On 19 September the trial resumed until 21 September when the appellant's counsel asked for adjournment until 25 September to enable instructions to be taken. On 24 September counsel advised the Court that the appellant had been taken from his home to Westmead Hospital. The trial did not proceed on 25 September. On 26 September the appellant attended and was taken by ambulance from the Court to St Vincent's Hospital. Advice was received that the appellant would not be discharged that day. 13 On 27 September the appellant came to Court from St Vincent's Hospital. It was stated that Crown information was that there was no obvious cardiac cause for the appellant's complaints but his symptoms may be the result of neck pain and stress. Later the appellant collapsed in Court and was taken by paramedics back to St Vincent's Hospital. The hearing was again suspended. Later enquiry by the Crown resulted in a note from Dr Hayward of St Vincent's Clinic that he was told that the appellant had "collapsed in Court" and was coming back to St Vincent's Hospital. Dr Hayward rang Casualty but was told that the appellant had left Casualty before being reviewed by medical staff. 14 The Labor Day holiday weekend was imminent. The trial was scheduled to resume on the Tuesday after the holiday, that is 2 October. On that day the Court was informed that the appellant was taken to Liverpool Hospital the previous evening. The Crown assertion was made that the appellant was "hawking" his symptoms from hospital to hospital to create a situation whereby the trial would not be completed. To ensure his attendance, application was made to revoke bail. The learned trial judge revoked bail and ordered a warrant to issue to be executed upon the appellant when he was discharged from hospital. Accordingly the appellant was taken into custody, however the trial did not continue on Thursday and Friday, the 5 and 6 October owing to the illness of a juror. 15 A letter signed by a medical registrar at Liverpool Hospital dated 2 October 2001 stated that the appellant had been admitted "with right sided weakness, the cause is unclear". 16 The recitation of the above circumstances shows that those pertaining to the appellant are in no way comparable to those which existed in Thornberry v The Queen 1995 60 ALJR 777 to which the appellant referred. 17 On 8 October his counsel asked that the appellant be re-arraigned and the pleas of guilty were entered as earlier described. 18 As also abovementioned, without objection by the Crown, the appellant tendered some further copy medical reports at the hearing of the appeal. These were received on the basis that they might cast light upon some relevant condition affecting the appellant. A considerable bulk of the material consists of recording of information (some of it by "ticking" boxes) provided to the Corrections Health Service by the appellant himself. Similarly documentation from Liverpool Health Hospital reports the diagnostic inconclusiveness conveyed by the Registrar of "right sided weakness - cause unclear". The recitation of complications including "previous subclinical stroke" is self evidently history which must have been provided by the appellant. The same source is evident for history records in some documentation from the Pain Clinic. 19 The new material tendered by the appellant adds nothing of significance to the overall situation as it existed in October 2001. The appellant's written submission asserts that he has been continually treated by the Corrections Health Service for the effects of "stroke, heart attack, angina and cervical spine disease". So far as examination of the records reveals, it would be more accurate to observe that the appellant is treated for his complaints in those regards. In any event he has volunteered that he has "to this day no doubt that the Corrections Health Service saved his life during the first six months of his incarceration and that the treatment that he received and is still receiving is world's best quality". 20 None of this material provides any basis for determination by this Court that Shadbolt DCJ made any error in revoking the appellant's bail nor is it shown that his discretion miscarried in any relevant respect. Ground 1 must be rejected. 21 Ground 2 asserts that the learned trial judge's diagnosis of the appellant's condition was incorrect. His Honour did not purport to make a diagnosis. In his remarks on sentence he referred to the Crown contention that the appellant was "hawking" his symptoms and he revoked bail after reading medical reports which had been provided to him but the issue (on this aspect) was whether the orderly continuation of the trial should be secured by the attendance of the appellant in custody rather than from bail, and no error has been demonstrated. 22 The finding by his Honour, as Ground 3 suggests, of why the appellant changed his plea is apparently a reference to remarks concerning whether the appellant should be granted some "discount" on sentence for timeliness of his pleas of guilty. His Honour remarked that the pleas of guilty were probably induced, as much as anything, by the knowledge that the appellant's brother was to give evidence against him. The Crown case had been stated to be completed but for a few witnesses and the history of the proceedings in this regard was mentioned by the judge. As his remarks show, he was not seeking to use any finding about reasons for the pleas of guilty to aggravate the offences or inflate the sentences, but rather he was contemplating whether the circumstances merited a reduction by reason of timely pleas. 23 Ground 4 is an assertion in contradiction of those pleas of guilty ultimately entered. I have above noted the giving of written instructions to legal representatives and the absence of any indication that duress was being felt by the appellant at the time sentence was imposed upon him. There is no evidence of any coercion being applied to the appellant. His position differs in the extreme from that in R v Inns 1974 60 Cr App R 231 where a plea of guilty was held to be a nullity when it was offered after threats and pressure from the presiding judge, which threats had been conveyed by counsel to the appellant in that case. 24 As I have said, the issue is whether the appellant was given a fair trial and examination demonstrates that he has had one. The appeal against conviction should fail. 25 The appellant seeks leave to appeal against sentence. The details of the impositions have been set out above. 26 In this connection the appellant raises two points. First, he contends that "pursuant to s16G" of the Crimes Act (Commonwealth) his Honour was obliged to "take one third of the sentence off in fixing a non parole period". There is no statutory obligation nor does authority impose a rule or fixed ratio: R v Sweet [2001] NSWCCA 445. The submission appears to mis-state the generally accepted appropriate approach which was accurately conveyed to his Honour during submissions on sentence made to him on behalf of the Crown. 27 Second, the appellant submits that as the brother of a Corrective Services officer he would be required to serve his sentence in protection which his Honour should have taken into account. I infer that the thrust of this submission is that incarceration in protection is generally more onerous in the sense that there is, among other things, restriction upon the capacity of the prisoner to enter and complete various courses and to engage in rehabilitative and other exercises. No evidence was put before the sentencing court about the appellant's brother's employment nor apart from the submission, before this Court. The evidence does not show the appellant has been in protective custody during the whole or what parts of his incarceration. I have already recited his remark about receiving medical care. This assertion does not provide a sound basis for intervention on sentences which, in overall effect, were well within the range of the sound exercise of discretion and, in my view, manifested a significant degree of lenience. 28 I would dismiss the appeal against conviction and refuse leave to appeal against sentence. 29 SMART AJ: I agree with Grove J. 30 DAVIDSON AJ: I agree with Grove J. **********

Regina v O'Brien

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