Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against conviction - Robbery - Whether trial judge erred in refusing to allow change of plea - Section 99(5) of the Criminal Procedure Act 2004 (WA)

Criminal Appeals Act 2004 (WA), s 27(2)

Criminal Procedure Act 2004 (WA), s 99, s 99(4), s 99(5)(a), s 99(5)(b)

Borsa v The Queen [2003] WASCA 254

The State of Western Australia v Windie [2011] WADC 188

3 MAZZA JA: This is an application for leave to appeal against conviction.

4 On 18 July 2011, the appellant pleaded guilty before the Midland Magistrates Court to one count of robbery contrary to s 392 of the Criminal Code (WA). He was committed to the District Court for sentence. On 26 October 2011, the appellant applied to Derrick DCJ to, in effect, change the plea to not guilty. That application was refused by his Honour: The State of Western Australia v Windie [2011] WADC 188. As a result, on 18 November 2011, pursuant to s 99(4) of the Criminal Procedure Act 2004 (WA) (the Act), Curthoys DCJ entered a plea of guilty to the charge and the appellant was duly convicted.

5 The proposed ground of appeal alleges that Derrick DCJ erred in refusing to allow the appellant to change his plea.

6 Leave to appeal cannot be granted unless the court is satisfied that the proposed ground has reasonable prospects of succeeding: s 27(2) Criminal Appeals Act 2004 (WA).

7 On 1 July 2011, the appellant entered a Woolworths liquor store in Midland and stole a bottle of Southern Comfort. A security officer stopped him and asked him to return the bottle. The appellant failed to do so and ran from the store. He was immediately pursued by the liquor store's security officer, Mr Singh, and the shopping centre's security officer, Mr Konya.

8 On the facts alleged by the prosecution, after a short chase, the appellant stopped and swung the Southern Comfort bottle in a threatening motion at Mr Konya who was attempting to prevent the theft. A short time later the appellant was stopped by police who located the stolen bottle of Southern Comfort on him.

9 The appellant was conveyed to the Midland police station and interviewed. He said that he had been intoxicated that day. At one point he denied committing the offence, but he also said, 'I can't recall anything': video record of interview, ts 10. The appellant was subsequently charged with the offence of robbery.

10 On 18 July 2011 the appellant appeared in the Midland Magistrates Court to answer the charge. He was represented by a lawyer, Ms Rados. Initially he pleaded not guilty. An application for bail was made but refused. Later that day, the appellant changed his plea to guilty. As a result, the magistrate remanded the appellant to the District Court for sentence on 16 September 2011.

11 On 16 September 2011, the appellant informed the District Court that he wanted to make an application to change his plea. The proceedings were adjourned for this purpose. On 20 October 2011, the application and the appellant's supporting affidavit sworn 19 October 2011 were filed. The affidavit is brief. Omitting formalities, it states:

1. I was born on 19 December 1990.
2. I went to school until year 9.
3. I understand that I have been charged with robbery. The incident occurred on 1 July 2011.
4. On 18 July 2011 I went to the Midland Magistrates Court. I instructed my lawyer Ms. Rados that I intended to plead not guilty to robbery. I agreed that I stole a bottle of liquor from Woolworths Liquor but I disagreed that I swung the bottle at a security officer when he came to get the bottle back. I also instructed Ms Rados to apply for bail that same day.
5. Ms. Rados applied for bail. Bail was refused.
6. I then asked the [court] security officer to tell Ms. Rados that I wanted to speak with her again. I then instructed Ms. Rados that I wanted to change my plea to guilty. This instruction was given at the detention room at Midland Magistrates Court. I was upset and angry because bail had been refused. I told Ms. Rados that I accepted the 'Statement of Material Facts'[.] I did swing the bottle at the man who tried to get the stolen bottle back. I told Ms . Rados to get me back into Court so that I could plead to the charge and get it over and done with. I did not fully understand the seriousness of the charge and I was angry at the time of giving this instruction. Ms_._ Rados advised against pleading guilty at that time and said that I should think about my plea. But I repeated that I wanted to plead guilty that day.
7. We returned to Court and I pleaded guilty to robbery before the Midland Magistrate's Court.
8. I later telephoned Ms. Rados and told her that I wanted to change my plea back to not guilty because I did not actually swing the bottle at the man.
9. On 26 August 2011 Ms. Rados visited me at Hakea Prison. I repeated that I did not in fact swing the bottle at the man and that I wanted to change my plea.
10. On 1 September 2011 I was visited by Mr. Ian Hope a[t] Hakea Prison. I told Mr. Hope that I did not actually swing the bottle at the man and repeated that I wanted to change my plea to not guilty. Mr. Hope said that he would tell the Court and the prosecution that I intend to change my plea to not guilty.
11. I truly believe that I did not swing the bottle at the man. When I told Ms. Rados that I wanted to plead guilty I gave her that instruction when I was really upset and angry at having bail denied. If I was, released on bail I would not have told Ms. Rados that I intended to plead guilty. I was just reacting.
12. When I pleaded guilty I did not fully understand that the charge was serious, even though Ms Rados said that it was serious. I was hoping that I might get a fine and be released from custody.
13. I am guilty of stealing but I truly believe that I am not guilty of robbery.

His Honour treated the appellant's statements of belief in pars 11 - 12 as denials that he committed the offence of robbery.

12 Derrick DCJ heard and determined the appellant's application on 26 October 2011. At the hearing, his Honour admitted into evidence the following materials:

(3) a pre-sentence report dated 13 September 2011; and

(4) the statement of material facts and sentencing transcript for an offence of robbery for which the appellant was convicted in the District Court on 3 October 2006.

13 In addition to these materials, his Honour had the brief for sentence and the witness statements of Mr Singh and Mr Konya, each of which was to the effect that the appellant swung the bottle of Southern Comfort in a threatening manner at Mr Konya.

14 At the time of the alleged offence, the appellant was 30 years of age. His formal education was limited. He left school in year 9. The appellant had an entrenched alcohol problem. He also had a very extensive criminal history, both as a juvenile and as an adult. His adult record included numerous convictions for stealing and assaults of various kinds. As already mentioned, in 2006, he was convicted of robbery (erroneously noted in his criminal history as aggravated robbery). The evidence with respect to that offence showed that the circumstances had some similarities to the present case. On that occasion the appellant stole a bottle of whisky from a liquor store, but he was seen by a staff member. As he ran from the store, he punched the staff member to the neck in order to escape. He was sentenced to 12 months' immediate imprisonment for this offence.

The appellant's submissions before Derrick DCJ

15 Before Derrick DCJ, the appellant submitted that, pursuant to s 99(5) of the Criminal Procedure Act, a plea of not guilty should be entered. Alternatively, the appellant submitted that the court should, in the exercise of its inherent jurisdiction, allow him to change his plea because to do otherwise would result in a miscarriage of justice.

Section 99 of the Act

16 Section 99 of the Act sets out the procedure where a person, such as the appellant, pleads guilty to an indictable offence in the Magistrates Court and is committed to a superior court for sentence. If that person, when called upon to plead to the same charge in the superior court, enters a plea of not guilty and the statement of material facts does not differ materially from the facts disclosed to the lower court, the court must enter a plea of guilty unless s 99(5) of the Act applies.

17 This subsection empowers the superior court to enter a plea of not guilty in two circumstances. The first of those circumstances is if, based on the statement of material facts, the court is satisfied that the accused could not have or may not have committed the offence: s 99(5)(a) of the Act. It was not argued before Derrick DCJ or this court that this subsection applies to the present case.

18 The second circumstance where a plea of not guilty will be entered is set out in s 99(5)(b) of the Act, as follows:

Having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.

19 It is clear from the language of the subsection that a court considering whether to enter a plea of not guilty may, as his Honour did in this case, have regard to material other than the statement of material facts. The onus is on the applicant to establish that the plea in the lower court was entered as a result of a material misunderstanding as to the charge, the plea or the purpose of the proceedings.

20 His Honour accepted that he had the power to enter a plea of not guilty pursuant to s 99(5) of the Act or he could allow the appellant to change his plea if a refusal to do so would result in a miscarriage of justice. His Honour concluded that, either way, the application failed.

21 With respect to s 99(5) of the Act, his Honour found that the appellant understood:

(iii) the purpose of the proceedings: [27], [30] and [31].

22 His Honour made findings (i) and (iii) based on the appellant's affidavit and, in part, on 'the appellant's extensive criminal history': [27]. As to finding (ii), his Honour noted that the appellant's submission was that he misunderstood the seriousness of the charge because he was mistaken as to the punitive consequences of the plea. His Honour concluded that, assuming that to be the case, it was not a material misunderstanding as to the charge: [32].

23 Further, his Honour was not satisfied that a miscarriage of justice would arise if the plea of guilty was allowed to stand. His Honour summarised the reasons for not allowing a change of plea, as follows:

The facts as alleged by the State do disclose the commission of the offence of robbery. The accused when he appeared in the Magistrates Court understood the nature of the charge. He told his lawyer that he accepted the facts alleged by the State. He understood that if he pleaded guilty to the robbery charge he would be admitting that he swung the bottle at the man who was trying to take the bottle off him in order to prevent the man from doing this. He understood the advice given to him by his lawyer. He voluntarily entered the plea of guilty despite being advised not to do so. He now asserts that he did not engage in the relevant threats of violence and that he pleaded guilty to the charge because he was angry at being refused bail, was under a misunderstanding as to the seriousness of the charge and hoped that if he pleaded guilty he might be dealt with by way of a fine. The State's case against the accused in relation to not only the stealing element of the charge but also the threats of violence element is strong.

Taking all of the circumstances into account I am not satisfied that a miscarriage of justice will occur if I refuse to allow the accused to change his plea. I am not satisfied that the plea of guilty entered in the Magistrates Court was not genuine. I am not satisfied that the plea was not a true admission of guilt. I am not satisfied that the accused's subsequent denials of having engaged in threats of violence are anything other than a product of the realisation on his part of the seriousness of the offence which by his plea he admitted committing. I therefore decline to exercise the inherent jurisdiction to enter a plea of not guilty on the accused's behalf [51], [52].

24 In respect of s 99(5) of the Act, the appellant submitted that his Honour erred in failing to find that the appellant did not materially understand the charge. In oral submissions, when his counsel was asked to succinctly identify the material misunderstanding, counsel said that the appellant misunderstood that robbery required an element of violence: appeal ts 5. Counsel asserted that his Honour 'drew comfort where there shouldn't have been' from the appellant's conviction in 2006 for robbery: appeal ts 2.

25 The appellant's counsel also submitted that having regard to the appellant's denials of guilt to the police and his lawyers, his personal background and that he continued to believe in his innocence, it was in the interests of justice to allow the appellant to change his plea to not guilty.

26 I will assume without deciding that s 99(5) does not exclude the operation of the inherent jurisdiction of the court when a plea of guilty has been entered in the Magistrates Court. I will deal first with his Honour's refusal to enter a plea of not guilty pursuant to s 99(5) of the Act.

27 Having regard to the evidence, and particularly to the appellant's own affidavit, there was no factual basis to find that the appellant materially misunderstood the charge, the plea or the purpose of the proceedings.

28 To the contrary, the affidavit of the appellant showed that he understood that:

1. a robbery involved a stealing with the threat of violence;
2. a plea of guilty constituted an admission to the offence and that he had a free choice not to enter such a plea; and
3. one of the purposes of the proceedings before the magistrate was, if he chose, to enter a plea of guilty.

29 At best, the affidavit showed that the appellant was under a misapprehension as to the seriousness of the offence and the penalty he might receive. That misapprehension is not a material misunderstanding as to the charge, the plea or the purpose of the proceedings.

30 The argument that his Honour erroneously took comfort from the appellant's prior conviction for robbery in 2006 has no merit. It was relevant to whether the appellant misunderstood the charge that he had, in the recent past, pleaded guilty to the same offence which had been committed in similar factual circumstances. The weight to be given to this consideration was a matter for his Honour.

31 Turning to the question of miscarriage of justice, it is not easy to persuade a court to set aside a plea of guilty on this basis. There must be a strong case to do so. Although cases of miscarriage of justice cannot be exhaustively identified, there are three well-recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:

1. where the appellant did not understand the nature of the charge or did not intend to admit guilt; or
2. if upon the admitted facts the appellant could not, in law, have been guilty or the offence; or
3. where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like: Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing).

32 The appellant was, at all material times, legally represented. Prior to entering his plea of guilty, he had seen and evidently understood the statement of material facts. As a result, he clearly knew that what was being alleged against him was not just that he stole the bottle of Southern Comfort, but that he also threatened Mr Konya. The appellant told his lawyer that he accepted the facts as alleged. Those facts amply made out the elements of the offence of robbery. Having received his lawyer's advice, he decided to enter his plea of guilty. It was never the appellant's case that on the admitted facts he could not, in law, have been convicted of robbery, nor was it said that the plea of guilty was entered as a result of any impropriety.

33 The appellant had extensive experience in the criminal justice system and would have, despite his limited education, appreciated the significance of entering a plea of guilty. The case against the appellant was strong. The two security officers each said in their depositions that the appellant waved the Southern Comfort bottle in front of Mr Konya. The credibility of the appellant's denials of guilt was undermined, to a significant degree, by his intoxication and his statement to the police in the record of interview that he could not recall anything. The appellant's unrealistic expectation that he would receive a fine is not a reason to set aside the conviction.

34 His Honour's conclusion that there was no miscarriage of justice was plainly correct.

35 For these reasons, the ground of appeal has no prospects of succeeding. Leave to appeal is refused and the appeal is dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.