Regina v Sewell [2002] NSWCCA 7 | Case summary

Judgment 1 IPP AJA: This is an appeal against conviction and an application for leave to appeal against sentence. I shall deal first with the appeal against conviction. 2 On 10 May 2000 during the course of a hearing before Price DCJ the appellant pleaded guilty to seven counts of contravening s 300(2)) of the Crimes Act. Each of the seven counts averred that the appellant had used a false instrument knowing it to be false with intent to induce Westpac to accept it as genuine and thereby credit to the appellant's account a specified sum of money to the prejudice of the appellant's employer, Westbus Pty Limited. 3 At the same time the appellant acknowledged his guilt in respect of ten like counts that were specified pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 in the prescribed form (Form 1) to that Act. However, the appellant was not asked by Price DCJ, pursuant to s 33 of the Act, whether he wished the 10 Form 1 matters to be taken into account when dealing with the seven counts on the indictment. 4 After the pleas to the seven counts in the indictment had been entered, the matter was adjourned as the appellant was not ready to proceed with the sentencing process. 5 The pleas were entered pursuant to an agreement between the Crown and the appellant as to the counts that were to be brought against him in respect of which he would plead guilty. I shall later refer in greater detail to that agreement. It is sufficient at this stage to say that the seven counts on the indictment and the 10 Form 1 counts constituted the counts that the parties had agreed were the counts to which the appellant would plead guilty. 6 Later, the appellant decided to resile from the agreement and plead not guilty to the 10 Form 1 counts. I shall return to the circumstances under which this occurred. 7 The appellant argues that this court, in the exercise of its inherent jurisdiction, should allow the appellant to withdraw his pleas of guilty to the seven counts on the indictment (see Maxwell v The Queen (1995) 184 CLR 501). The appellant contends that, as he had not complied with the agreement he had arrived at with the Crown, it would be unjust to allow the pleas of guilty to stand. The curious aspect of this argument is that it rests on the proposition that the appellant should be allowed to withdraw his pleas of guilty by reason of his own conduct in resiling from the agreement. 8 Alternatively, the appellant argues that McGuire DCJ, the sentencing judge, erred in omitting, immediately prior to sentencing the appellant, to ask him whether he adhered to the pleas of guilty to the 7 counts. 9 I return now to the sequence of events. On 27 July 2000, after the matter had been adjourned for sentencing, the appellant filed a notice of motion seeking to withdraw his pleas of guilty. He did not then rest his argument on the grounds presently relied on. The hearing of that motion was stood over to 10 November 2000. On that day the appellant withdrew the motion and it was dismissed. 10 Eventually, the matter was listed for mention on 1 March 2001 to fix a hearing date for sentence. On that day the appellant again applied for leave to withdraw his plea of guilty. Again, the appellant did not seek to rely on the grounds now being agitated. That motion stood over to 26 March 2001 and it was listed for hearing before Gibson DCJ on 10 May 2001. His Honour refused the appellant's application and set a sentence hearing for 29 June 2001. 11 The appellant then sought leave to appeal to this Court. By judgment delivered 10 August 2001 (R v Sewell, (2001) NSWCCA 299) the appellant's application for leave to appeal was dismissed. 12 On 16 August 2001 the appellant filed an application for special leave to appeal to the High Court against the decision of this Court delivered on 10 August 2001. 13 On 4 October 2001 the appellant applied to Blanch CJDC for an order staying the sentence proceedings pending the determination of the High Court special leave application. This application was dismissed. 14 On 18 October 2001 McHugh J refused the appellant's application for an order staying the sentence proceedings pending determination of the High Court special leave application. 15 On 19 October 2001 the appellant applied to McGuire DCJ for an order staying the sentencing proceedings. The application was dismissed. In the course of his reasons McGuire DCJ said: "I have been informed that when the matter came before Price DCJ an indictment containing seven counts was presented to which pleas of guilty were entered. A Form 1 was also presented. It is signed by both the Crown and [the appellant] however, the requirements of s 33 of the Crimes (Sentencing Procedure) Act were not complied with, in that [the appellant] was not asked by the judge whether he wanted the matter set out on the Form 1 to be taken into account when dealing with him for the offences set out in the indictment. I am now told that [the appellant] does not want those matters taken into account. I will formally ask him and if he declines I will not deal with them. I am informed by the Crown that if those matters that is to say the ten matters on the Form 1 are not taken into account this day that a further prosecution will be instituted to include those. This should be carefully considered by [the appellant] [the appellant] is this day represented by [counsel] and a solicitor.". 16 Mr Papayanni, who together with Mr Leary represented the appellant in this appeal, appeared for the appellant in the sentencing proceedings before McGuire DCJ. Mr Papayanni informed this Court that some mention was made to McGuire DCJ of the fact that the appellant wished to withdraw his pleas of guilty. The transcript, however, makes no mention of this (although it appears to be incomplete), no evidence has been put before the court in this connection, and the judgment of McGuire DCJ is inconsistent with such a matter having been raised. Dr Power, who appeared for the Crown (but who did not appear before McGuire DCJ), did not concede that, at the hearing before McGuire DCJ, the appellant sought to withdraw his pleas of guilty. In the circumstances, I proceed on the basis that nothing was said to McGuire DCJ in this respect. 17 After delivering his judgment on the adjournment, McGuire DCJ went to great pains to establish that the appellant appreciated that, if the counts on the Form 1 were not taken into account, the Crown intended to proceed against the appellant in relation to them. This can be seen from the following exchanges: "His Honour: Mr Papayani does your client appreciate that if the matters on the Form 1 are not taken into account that the Crown intends to proceed against him in relation to them? PAPAYANNI: I haven't spoken to him about the forty-four charges in relation to that your Honour but I won't be doing the sentending matter. HIS HONOUR: You might not be doing the sentencing matter but what I want to know is does your client understand what's going to happen or what is highly likely to happen if he doesn't ask that those ten matters be taken into account. As to whether he does or he doesn't is entirely a matter for him. No consequence as far as I'm concerned. PAPAYANNI: I understand that your Honour. HIS HONOUR: All right, will you seek specific instructions from him? PAPAYANNI: Yes your Honour.. … PAPAYANNI: Your Honour I've been explaining to Mr Sewell the full implication of pleading guilty and not pleading guilty to those ten counts and what would happen in relation to it and he wishes to plead not guilty to the matters on the schedule your Honour. I assured him that your Honour would not take into account the fact that he has been charged with another forty-four counts and he understands that also. HIS HONOUR: I will formally ask Mr Sewell. Mr Sewell you did sign a document dated 10 May in which you indicated that you wished ten matters to be taken into account when you were to be sentenced for the matters contained in the indictment. I am told by Mr Papayanni that you no longer wish those matters to be taken into account. Is that so? OFFENDER: Yes your Honour. HIS HONOUR: All right then, they will not be taken into account. You appreciate as you have heard me mention to Mr Papayanni that those matters will almost certainly be proceeded with on some other indictment the Crown intends to present." 18 On 24 October 2001 McGuire DCJ sentenced the appellant in regard to the seven counts in the indictment. He imposed concurrent terms of imprisonment of four years expiring on 23 October 2005 with non-parole periods of one year five months expiring on 23 March 2003. 19 On 23 November 2001 the appellant's application for special leave to appeal was dismissed by the High Court. 20 I now turn to what is said by the appellant to be the terms of the agreement between the appellant and the Crown in regard to the number of charges that were to be brought against the appellant. This requires some explanation. 21 The appellant was first arrested and charged on 29 January 1996. On 20 November 1998 he pleaded guilty in the District Court to 20 counts of using a false instrument contrary to s 300(2) of the Crimes Act. On 26 February 1999 Karpin DCJ imposed various sentences on the appellant, the majority of which involved full time custodial imprisonment. 22 The appellant appealed to the Court of Criminal Appeal against both conviction and sentence. He sought to withdraw his pleas of guilty on the basis that he was entitled to raise a claim of right in answer to each charge, that is to claim an honest belief in his entitlement to act in the way he did notwithstanding that objectively such belief appeared to be unreasonable. On 27 September 1999 the convictions were quashed and a retrial was ordered. 23 On 8 May 2000 the appellant was indicted in the District Court on 44 counts of using a false instrument. The trial aborted and a fresh trial commenced on 9 May 2000 before another judge. 24 In the course of the trial it became apparent that evidence was available that was capable of establishing the claim of right, at least to a limited and as yet undetermined degree. This resulted in the nature of the case changing and required new investigations to be made. In consequence the jury was discharged and the matter was adjourned for mention on 10 May 2000. 25 On 9 and 10 May 2000 discussions ensued between representatives of the Crown and the appellant. These led to the agreement between the Crown and the appellant. What occurred was set out by Smart AJ in the course of his reasons in R v Sewell [2001] NSWCCA 299 as follows: "(g) During the course of the afternoon of 9 May 2000 and the morning of 10 May 2000 extensive discussions took place. As a result of discussions the Crown Prosecutor had with her instructing solicitor, Mr Ash and Det Compton on the afternoon of 9 May 2000 the Crown accepted that the accused had a possible claim of right to slightly less than $31,000. The Crown Prosecutor and her instructing solicitor conferred with the counsel and solicitor for Mr Sewell and the Prosecutor outlined the extent of the claim of right which would be accepted by the Crown and how the figure was calculated. She offered to accept a plea of guilty to 17 counts of using a false instrument from the original indictment which contained 20 counts. Here counts totalling $32,290.70 were removed from the indictment. The remaining 17 counts were divided into an indictment containing 7 counts and a Form 1 containing 10 counts. Counsel and the solicitor for Mr Sewell conferred with him. Just prior to luncheon on 10 May 2000 the Prosecutor was informed that the accused would plead guilty to the 7 counts in the indictment, acknowledge his guilt as to the 10 counts on Form 1 and ask that they be taken into account." 26 As I have mentioned, pursuant to the agreement that had so been arrived at, when the matter came on before Price DCJ in the afternoon of 10 May 2000 the appellant entered pleas of guilty to the seven counts on the indictment and acknowledged his guilt in respect of the 10 Form 1 counts. 27 Before this Court, the appellant argued that the agreement entered into on 10 May 2000 was to the advantage of the Crown (as well as to the appellant) and, once it was no longer implemented, albeit at the instance of the appellant himself, it should be regarded in effect as a nullity. It was said that to hold the appellant to the agreement once he had elected not to abide by it, would give rise to a miscarriage of justice. 28 Cardinal to these arguments is the proposition that the appellant was induced to come to the agreement by his belief that he would receive lesser sentences for the 10 Form 1 counts - were those sentences to be imposed together with the seven charges on the indictment (rather than in separate sentencing proceedings). He submits that by reason of the fact that sentencing proceeded on the seven counts in the indictment alone, he lost the benefit that would otherwise have accrued to him. 29 It was also submitted that, in terms of the agreement, the Crown undertook not to bring any further charges against the appellant (other than the 17 counts, the subject of the agreement). The evidence before the Court, however, did not support this submission. 30 I have pointed out that McGuire DCJ took great care to ensure that the appellant understood the consequences of his decision to depart from the terms of his agreement with the Crown and to plead not guilty to the 10 Form 1 counts. Nevertheless, the appellant deliberately, on a fully informed basis, resiled from the terms of the agreement. In these circumstances, how it could be said that it would be a miscarriage of justice if the appellant were to be held to the agreement, escapes me. 31 It is, in any event, helpful in regard to the argument advanced, to have regard to a document signed by the appellant on 10 May 2000 that was witnessed by his solicitor. The document was in the following terms: "THOMAS JOSEPH SEWELL 10 May 2000 PARRAMATTA DISTRICT COURT On Tuesday 9 May a jury trial commenced before Price DCJ & a jury of twelve. I had pleaded not guilty to 44 counts under section 300(2) of the Crimes Act. This trial was terminated following an application by my counsel when the Crown sought to introduce fresh evidence not previously raised. Subsequent to the trial aborting I understand the Crown are prepared to offer a different indictment which contains 7 counts and 10 matters on a Form 1. My counsel has explained to me that if I plead guilty to these counts that I do so having abandoned my defence of 'Claim of Right' to all counts. I have been informed that by pleading guilty I am admitting all relevant elements of the offence - which includes I acted consciously to obtain the money alleged for my own purposes to the prejudice of Westbus without any entitlement to this money on my own part. I have been informed that the Crown will indicate that periodic detention as a sentence would be inappropriate having already served a previous sentence of this type. My counsel has informed me that because of my record it is highly probable that I will be again sentenced to a period of full time custody". 32 In R v Sewell Smart AJ (with whom the other members of the court agreed) commented on this document as follows: "These are unusually detailed instructions and easy to understand. There is an explicit acknowledgment by Mr Sewell that he had no entitlement to any of the moneys the subject of the seven counts in the indictment and the subject of the 10 counts in Form 1". His Honour also pointed out that Gibson DCJ held that at the time the appellant entered his pleas of guilty on 10 May 2000 "he did have a genuine understanding of his own guilt and that the plea was an expression of that guilt". Smart AJ observed: "The findings of fact made by the judge were reasonably open on the evidence".

In my opinion, the facts in R v Chiron are entirely different to those in the present case. In R v Chiron the defendant was led to believe that by reason of an error of law on the part of the trial judge he would be found guilty when, but for that error, he had a good chance of being acquitted. In the present case there is no factor that caused the appellant to believe that there was a prospect of him being wrongly convicted of the seven counts on the indictment. On the contrary, the appellant had a genuine understanding of his own guilty and his pleas of guilt were an expression of that guilt. 38 There were tactical reasons that led to the appellant pleading guilty to the seven counts on the indictment and the 10 Form 1 counts. See in this regard R v KCH [2001] NSWCCA 273. Nevertheless, his pleas of guilty were made unconditionally, with full knowledge of what they entailed. As I mentioned at [94] in R v KCH: "As long as the decision to plead guilty was made freely and voluntarily, the decision stands. This is the necessary corollary of the principle laid down in Maxwell v The Queen at 511 that if the plea of guilty is genuine, and the accused person knows what he is doing, he may, for 'whatever reason' insist on pleading guilty". 39 In my view, no improper pressure was put on the appellant to plead guilty, he was not misled and his pleas of guilty were entirely voluntary. Nothing in the agreement entered into between the Crown and the appellant bore upon the appellant's innocence in respect of the seven counts. Even now the appellant has not attempted to establish (and has not asserted) that he is innocent of those counts. 40 In my view, the appellant's own conduct in resiling from the agreement that he arrived at with the Crown cannot give rise to an entitlement on his part to withdraw the pleas of guilty he made deliberately, voluntarily, and with full knowledge in open court. 41 In any event, the appellant's real complaint is not in respect of the seven counts, the subject of this appeal, but in regard to what might transpire with respect to the 10 Form 1 counts and any other additional counts that might be brought. It will be open to the appellant to present appropriate arguments in regard to sentence in relation to the ten Form 1 counts (if and when sentence is imposed) and to make whatever submissions he thinks appropriate in regard to any additional counts that may be brought (should that in fact occur). After all, the appellant might be acquitted in respect of the 10 Form 1 counts and the Crown may not proceed with additional charges. Arguments of the kind raised by the appellant are for another day and do not relate to the seven counts on the indictment. 42 I do not accept that there is any substance in the argument that McGuire DCJ should have asked the appellant before sentencing him whether he adhered to his plea of guilty. 43 The appellant was represented at the sentencing proceedings by experienced counsel and understood full well what the consequences of his actions were. The inference is that he intended his pleas of guilty to stand. In my view, by his conduct, the appellant, before McGuire DCJ, implicitly or tacitly adhered to his pleas of guilty to the 7 counts on the indictment. 44 The appellant also contended that Blanch CJDC erred on 19 October 2001 when refusing the appellant's application to adjourn the sentencing proceedings until after the special leave application was heard on 23 November 2001. 45 The argument advanced on the appellant's behalf was that he was compelled to plead not guilty to the Form 1 counts as, otherwise, his application for special leave to appeal to the High Court against the order refusing him leave to withdraw his pleas of guilty to the seven counts on the indictment would be prejudiced. It was said that, had he pleaded guilty to the Form 1 counts, "it could be said that he had waived the fact that he was innocent in further proceedings". 46 I do not accept this submission. On 10 May 2000 the appellant had acknowledged his guilt in respect of the 10 Form 1 counts. There could be no prejudice to him in maintaining that attitude were he still to be of the view that the acknowledgment had correctly been made. The 10 Form 1 counts were different to the seven counts on the indictment. The sole defence raised to all the counts was a claim of right. The amount of the claim of right was uncertain. The claim of right may well have covered some counts and not others. A plea of guilty to the 10 counts would not necessarily have involved a tacit acceptance of guilt in respect of the other counts. 47 Accordingly, I would dismiss the appeal against conviction. 48 I turn now to the application for leave to appeal against sentence 49 The first argument raised orally by Mr Papayanni was that McGuire DCJ did not give credit for the fact that, since 1993, the appellant had been employed by others in a managerial capacity and ad been meticulous in his honesty. 50 McGuire DCJ in his sentencing remarks said that he had taken into account character evidence from a number of prominent executives in the transport industry. Two of them, whilst aware of the prisoner's conviction, visited him in gaol. His Honour said the three witnesses he heard from in this respect regarded the appellant as industrious and innovative and considered that he enjoyed a genuinely good reputation throughout the industry. These remarks show that McGuire DCJ did indeed take into account the matters referred to by counsel. 51 Mr Papayanni submitted that McGuire DCJ wrongly failed to take into account that the appellant had rehabilitated himself since committing the offences. It is implicit in the remarks made by the judge concerning the evidence of the executives in the transport industry that his Honour accepted that the appellant had, to a degree, rehabilitated himself. 52 McGuire DCJ held that he should not take into account the delay between the appellant's offences and the imposition of the sentence. Mr Papayanni submitted that his Honour erred in this respect. His Honour said that, although there had been a delay, a substantial part of that delay was directly attributable to the conduct of the appellant. In my view his Honour was correct in that finding. Between 1993 and 1996 the delay that occurred resulted from the inability of police to ascertain the appellant's whereabouts even though the appellant, as McGuire DCJ pointed out, well knew that the police wished to interview him. Much of the delay that occurred subsequently was due to procedural problems, for which the appellant carries responsibility, and other procedural steps taken by the appellant himself. 53 Mr Papayanni submitted that McGuire DCJ wrongly held that the appellant was entitled to no more than the utilitarian value of his pleas of guilty. The Judge went into some detail in explaining why he had come to this particular conclusion. In essence, the appellant did not plead guilty at the earliest opportunity; his plea of guilty was made at a relatively late stage. In my opinion his Honour was entitled to come to the view that he did in this respect. 54 It is also to be borne in mind that the Crown case was very strong and a conviction was virtually inevitable: R v Ellis (1986) 6 NSWLR 633; R v Bishop (unreported, CCA, 23 December 1996). 55 The appellant contended that McGuire DCJ had wrongly found that he felt no remorse or contrition. His Honour said in this respect: "As to remorse and contrition [the appellant] continues to maintain in effect that he was entitled to take the moneys, the subject of the offences which concern me." This observation was unexceptionable, notwithstanding the fact that the appellant had offered to pay compensation of $60,000 at $5,000 a month. 56 The next point made in regard to sentence was that his Honour had found incorrectly that the applicant had no claim of right. 57 In the course of his reasons, McGuire DCJ pointed out the difficulty he had in quantifying exactly what the appellant claimed was his entitlement. His Honour observed that the appellant's claims were denied by his employer. I have also noted that in the document signed by the appellant on 10 May 2000 he expressly acknowledged that he had no entitlement to any of the moneys the subject of the seven counts in the indictment and the subject of the 10 counts in Form 1. 58 The observation made by McGuire DCJ on this particular issue was: "I simply do not accept the [appellant's] claims that he acted under some colour of right." In my view, on the evidence, his Honour was entitled to come to this view. 59 Mr Papayanni drew attention to the appellant's frailty and the fact that he has a serious medical problem. His Honour had expressed his views in regard to the appellant's state of health and nothing said by his Honour departed from the principles applicable to this issue: See R v L (unreported, CCA, 17 June 1996). 60 Mr Papayanni drew attention to the evidence as to the appellant's age, character and reputation and the fact that he had already served seven months in gaol. Against these must be weighed the fact that the appellant had a criminal history involving like offences, a matter taken into account by McGuire DCJ. 61 I conclude that having regard to the criminality evinced by the appellant and all the relevant circumstances the sentence imposed by his Honour was within his discretion. I would dismiss the application for leave to appeal against sentence. 62 GROVE J: I agree with Ipp AJA. 63 DOWD J: I also agree. 64 IPP AJA: The orders of the Court will therefore be that the appeal against conviction is dismissed and the application for leave to appeal against sentence is also dismissed. **********

Regina v Sewell

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