WOODS v R

Wednesday, 23 April 2008 David George WOODS v R Judgment 1 SPIGELMAN CJ: I have had the benefit of reading the judgment of Hulme J in draft. I agree with his Honour and wish to add some brief observations. 2 The authorities contain various formulations of the circumstances in which leave to withdraw a plea of guilty can be given. (See eg R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [32]-[33].) For the reasons given by Hulme J none of these formulations are satisfied in this case. 3 The substance of the submission put in this Court was that, upon a further review of documentation since the submissions were made before Marien DCJ, some matters capable of impinging upon the Crown case had been identified. These matters, which generally involved facts that could be deployed for the purpose of cross-examination of the complainant, had not been drawn to Judge Marien's attention. In my opinion, this is an entirely inappropriate approach to an application of this kind. 4 I indicated during the course of the submissions, as referred to by Hulme J, it is not appropriate to treat proceedings in a criminal court as if they constituted some kind of forensic game. The issue on an application to withdraw a plea focuses upon the genuineness of the confession of guilt. Whether or not an accused thinks the Crown has a strong case goes to the issue of whether he is likely to be convicted. That is not the focus of attention on an application of this character. 5 For the reasons identified by Hulme J the matters relied upon did not impinge upon the genuineness of the confession. Nothing has been shown to affect the integrity of the plea. 6 HULME J: On 12 June 2007, O'Connor DCJ sentenced the Applicant in respect of 2 charges to which he had pleaded guilty. The charges and the sentences imposed were:- (i) that on 23 April 2004 he indecently assaulted a person who may conveniently be referred to as "AS" in circumstances of aggravation, viz. that she was under age 16, i.e.14 - imprisonment for 21 months including a non-parole period of 9 months both periods commencing on 12 June 2007; (ii) that between 22 April and 4 May 2004, he intimidated AS with intent to cause her to fear physical or mental harm - imprisonment for 12 months including a non-parole period of 5 months, both periods commencing on 12 January 2008. 7 The Applicant seeks leave to appeal against the sentence imposed on the first charge on the sole ground that it is manifestly excessive. He makes no complaint about the sentence imposed on the second charge. He also seeks leave to appeal from a decision of Marien DCJ made on 29 November 2006 refusing an application to withdraw the plea of guilty to the first charge. 8 The Appellant had originally been charged with six offences including four of aggravated indecent assault on AS said to have been committed on 23 April 2004, one of intimidating AS with intent to cause her to fear physical or mental harm and one of altering a document with intent to hinder a police investigation in respect of the aggravated indecent assault. The Crown case in respect of the original four charges of indecent assault were that the Applicant had made contact with the complainant on the internet and had then effected a meeting with her at her home, that she then went for a drive with him, that while they were driving he touched her in the vaginal area and then after returning to her home put his hands on her breasts, again touched the area of her vagina and put her hand on his penis. Both the complainant and Applicant were dressed at all times and most of the touching was on the outside of clothes. After some time the complainant said she wished to leave, and alighted from the car having expressed a disinclination to allow the Applicant to have intercourse with her. 9 The Applicant was arraigned on these charges on 9 February 2006 and pleaded not guilty. A trial of the charges was listed to commence on 13 June 2006. 10 Prior to 13 June there had been some discussions between a representative of the Crown and Mr Gartelmann, then counsel for the Appellant. On 13 June those discussions resumed, the matter was stood down and in the afternoon the discussions resulted in an agreement that the indictment be amended so as to include only the 2 charges on which the Applicant was sentenced. The Applicant was re-arraigned before O'Connor DCJ and pleaded guilty to the 2 charges. The matter was adjourned to the following day, his Honour being informed that there might still be matters to be discussed between the parties. 11 On 14 June Mr Gartelmann announced that the Appellant had withdrawn his and his instructing solicitor's instructions. In due course the Applicant sought to withdraw his pleas with the result that I have indicated. (Originally it would seem that the application related to both pleas although at an early stage of the Applicant's evidence before Marien DCJ, the application was confined to the plea on the indecent assault charge.) 12 The basis of the application to withdraw the plea as advanced before Marien DCJ was that it was the result of duress, being pressure by his legal advisers to quickly make a decision on an offer by the Crown to accept pleas to the 2 charges, and this in the face of the Applicant's opinion that the evidence to be relied on by the Crown was confusing and wrong. The Applicant claimed that until 10 minutes before going to Court, the Crown had not offered his lawyers a negotiated plea of any type and that his plea was not a true indication of a consciousness of guilt and involved pleading guilty to charges he did not commit. He also asserted that he "did essentially what I was told and the solicitors got me to sign a document to support that decision was made of my own free will and I did so". He also deposed:- "I was not told the facts that I would be pleading guilty to at the stage that I entered the plea of guilty. I was only told that it was going to be 2 (Two) charges instead of 6 (six)." 13 In response the Crown filed an affidavit from Mr Mereniuk, the solicitor who was acting for the Applicant on 13 June. Mr Mereniuk, while in effect acknowledging that the Applicant had been reluctant to plead guilty to indecent assault, detailed a history of advice extending as far back as 16 May. On that day counsel showed the Applicant a document which had been produced by the police detailing the use of Simcards, handsets, mobile phone numbers and dates upon which the police alleged phone calls and text messages, some details of which appear below and which were the foundation of the intimidation charge, were made and sent. On this occasion the Applicant conceded he had been responsible solely or jointly with his girlfriend for making the phone calls and/or sending the text messages and, according to Mr Mereniuk's Affidavit read before Marien DCJ "agreed to plead guilty to the phone calls and text messages." 14 According to Mr Mereniuk, as early as 30 May he received authorisation from the Applicant for Mr Gartelmann to negotiate with the Crown. On 9 June there was discussion between the Applicant and his legal advisors concerning the text messages and the terms of the Applicant's ERISP. The details of that discussion were not the subject of evidence from Mr Mereniuk beyond the fact that there was some discussion about tendency evidence and that Mr Gartelmann expressed the opinion that the Crown would be able to use the evidence of the text messages and phone calls to support the charges of indecent assault.

I understand that by pleading guilty on the above basis that I will be taken to admit the truth of the allegations referred to in the statement of facts. Signed:…" 17 When the matter came before Marien DCJ, the Applicant was cross-examined and agreed that Mr Mereniuk's affidavit was accurate. He said that he had never admitted his guilt to his lawyers - the question may have been understood as referring to indecent assault - and asked why he then pleaded guilty, he said:- "Primarily because I was told that if it went to trial and I lost, I'd be in a pretty good likelihood I'd be spending quite a while in gaol for it and the last thing I want to do is spend time in gaol for this, so that's why I agreed to the statement." 18 The Applicant went on to say that he was advised that by pleading guilty he might avoid gaol and any term there would be much less than if he were convicted after trial. He said that he had been advised that his chances of success at trial were very low and that he pleaded guilty "because of being very worried about going to gaol". He drew a distinction between the expression in the written instructions "will be taken to admit the truth …" and admitting the truth. 19 The Applicant agreed that he had made a deliberate choice to sign the written instructions and would be taken to admitting the offences. Asked, "it was a choice when you were exercising your own free will?', he replied, "Yeah, if you could call it that, yes", and later agreed that in the end it was his choice if he signed the statement. He agreed that, overall, he had had some 12½ hours with his lawyers before entering his plea but on the 14 June had complained that the case had not been looked at properly and no time had been spent in looking at the evidence. He agreed that no one had put pressure on him to plead guilty. 20 Judge Marien's reasons for dismissing the Applicant's request for permission to change his plea included the following:- "It is clear on all the evidence, including the written instructions of the Applicant, signed by him before he pleaded guilty, that when he entered the plea of guilty to the aggravated indecent assault count he was aware of the nature of the charge against him and aware that by pleading guilty he was admitting and intending to admit his guilt for the offence charged. All of these matters are clearly evidenced by his signed written instructions. Further, I am satisfied that he entered the plea of guilty of his own volition freely and voluntarily after receiving appropriate advice from his legal advisors and after consulting with his mother and his girlfriend. I find that while the Applicant understandably found the situation in which he had to make the decision on 13 June 2006 whether or not to plead guilty, to be highly stressful, no person placed any pressure on him to plead guilty. And I further find that he was given adequate time on that day to consider his decision and that he was not rushed into a decision by anyone. … It was he who ultimately stood up in court, heard the charge read out to him and was asked whether he wished to plead guilty or not guilty and I find that he freely and voluntarily, having received all appropriate legal advice, entered that plea of guilty. As was said in Murphy , that plea of guilty duly recorded provides the strongest evidence of guilt. As was the case in Murphy I am satisfied on all the evidence, that before pleading guilty the Applicant appreciated the nature of the charges against him and well knew by such a plea that he was admitting his guilt. I am quite satisfied that his plea of guilty represented a genuine consciousness of guilt on his part." 21 Having regard to the evidence, particularly that given by the Applicant, it is hardly surprising that his Honour concluded as he did. On the material before him, his decision was clearly correct. 22 In this Court, the Applicant has sought to support his claim to be allowed to withdraw his plea on an entirely different basis than advanced to Marien DCJ. Here it has been submitted:- (i) The advice from trial counsel and solicitor for the Applicant/Appellant leading to the Applicant/Appellant pleading guilty to count 1 in the amended indictment was imprudent and inappropriate thus occasioning a miscarriage of justice - Wilke s (2001) 122 A Crim R 310; McLean (2001) 121 A Crim R 484. (ii) At the time the plea of guilty was entered the Applicant/Appellant was not in possession of all the facts and the guilty plea was not really attributable to a genuine consciousness off guilt - Meissner (1995) 184 CLR 132; Liberti (1991) 55 A Crim R 120; Hura (2001) 121 A Crim R 472; Murphy (1965) VR 187 at 191; Davies (unreported CCA, 16 December 1993). (iii) Detailed consideration of the statement of the complainant and other evidence revealed many significant issues that a competent defence would have raised. Had counts 1 to 4 in the original indictment proceeded to trial, a competent defence would have raised a number of what are said to have been significant issues. 23 These issues are said to arise in the main from a detailed examination of records of some 5 interviews that the complainant had with police and statements of a limited number of other witnesses. Attention is drawn particularly to references in later records to the effect that the meeting between the Applicant and the complainant occurred on 25 April not 23 April as originally alleged and charged although other apparent discrepancies and suggested omissions in the police brief are also pointed out. 24 None of the documents relied on were tendered before Marien DCJ although one would infer that they were contained in the Crown brief served prior to the Applicant's pleas. Furthermore, the tenor of the complaint now made somewhat contradicts a concession made by the Applicant's representative before Marien DCJ to the effect that he did not suggest that the advice given to the Applicant as to the strength of the Crown case and the likely result of a conviction after trial was inappropriate. 25 The same may be said of a further point said to arise from a statement in Mr Mereniuk's affidavit read before Marien DCJ to the effect that after making a correlation of statements in the messages from the Applicant and answers in the Applicant's ERISP, "Mr Gartelmann then went on to explain tendency and said words to the effect, 'There are certain conclusions that can be drawn'." It is now submitted that it is difficult to identify any admissible tendency evidence and on this account also the advice that the Applicant received as to the strength of the Crown case was erroneous. 26 In addition to the material just mentioned, it was also sought, on the Applicant's behalf, to rely on a further affidavit from him. The affidavit dealt with a number of topics. The first was an assertion that he had never understood that by pleading guilty he would be admitting his guilt to indecently assaulting the complainant but merely that he would be sentenced for that offence. The Applicant went on to say that had he known the true situation he would not have pleaded guilty. Paragraph 5 of the Appellant's written instructions is a sufficient answer to this complaint. 27 The second topic was a statement that he understood that he would be sentenced in respect of the indecent assault charge on the basis that he did not know the complainant's age at the time of the offence and would not have pleaded guilty on any other basis. In fact, O'Connor DCJ's remarks on sentence indicate that while he took the Appellant's awareness of the complainant's age into account on the intimidation charge, there is nothing to suggest he did so on the assault charge. His remarks when dealing with the latter charge to the effect that he took into account the (fact of) disparity in ages falls well short of what his Honour could have been expected to say if he was holding against the Appellant knowledge that the complainant was only 14. 28 The third topic had a number of parts. Essentially the Applicant sought by annexure or assertion to provide evidence that tended to contradict some evidentiary aspects of the Crown case as apparent in the documents in the Crown brief. 29 None of this further evidence referred to in the immediately preceding 6 paragraphs upon which the Applicant sought to rely could be regarded as "fresh". Asked during the hearing of the appeal upon what basis the Court should then receive it, the Appellant's solicitor's response was to the effect that it should have led to the Applicant being given different advice as to the strength of the Crown case and that he could not understand how the Applicant's solicitor appearing before Judge Marien could have come to the view he did. The inadequacy of these reasons as a justification for admitting the evidence on appeal is apparent. 30 Despite the conclusion just expressed, and perhaps out of undue deference to the claim of a miscarriage of justice, I have considered the evidence upon which reliance was sought to be placed. Certainly that examination leads to the conclusion that the Crown case contained a number of discrepancies and which would no doubt have provided some scope for cross-examination. However, I do not regard any of the matters as casting the slightest doubt on the advice the Applicant said he was given, viz. that his chances of success were very low. 31 In an ERISP made on 4 May 2004 the complainant identified the occasion upon which she said she was assaulted as "not last Friday but the Friday before". That was 23 April. A statement of a friend made on 11 May asserts that the complainant informed her of the event on the Sunday of the last week-end, i.e. 25 April and that the assault had occurred on the previous Friday. A statement by the complainant's mother dated 7 May says that it was also 25 April that the complainant informed her and the police of the matter. Those statements and an account of others contained in the written submissions made on the Appellant's behalf leave no room for doubt that any assault occurred on 23 April and that the complainant's reference - which I note was made 6 months later - to it having occurred on 25 April, when the submission claims the Applicant had an alibi, was a mistake. The other points sought to be derived from the additional evidence relied on are of no more substance. 32 When the Applicant was sentenced, the circumstances of the offences were described in a document entitled "Agreed Facts". According to what is there contained, between 22 April and 4 May the Applicant "made 39 phone calls to the complainant (23 unanswered) and sent 46 text messages". In those on and after 25 April the Applicant threatened that if the complainant was unwilling to have intercourse with him, he would tell her parents, including that she was pregnant and place her address on the internet. He also found the complainant's grandmother's telephone number in the phone book and when he called that number was provided with the complainant's home phone number, a fact of which he informed the complainant. 33 The text messages included 14 sent between 7.28 and 9.20 pm on 25 April, some of which said (including misspelling and abbreviation):- 7.57pm then tomorrow i give chats and messages to your parents and guy. then see how much he wants you. and your address will be put on the net tonight. 8.04pm go ask your mum if she had a missed call. ha ha no more message from me now if you don't fuck cause im doing what I say. count on it 8.15pm good then because both numbers have been put on the net already. he he and tomorrow night i give your chats to parents. ha ha then bf. then you are pregnant ha 8.24pm naughty miss s… ha ha ill be calling your mum tonight again i think seen as though you want to see if in serious 34 Although there was no witness who could corroborate the complainant in her account of meeting the Applicant and of being indecently assaulted by him, the evidence of complaint on 25th April does provide appreciable support for the complainant's account that she was indecently assaulted on the 23rd. In the face of the number of calls and the terms of the messages - clearly admissible in the prosecution of the assault charges - it would be extraordinary if a jury did not accept that if anyone assaulted the complainant on 23 April it was the Applicant. Furthermore, although I need make no final decision, the terms of the calls show that the Applicant had a willingness, if not a tendency, to impose his carnal desires on the complainant irrespective of her inclinations. 35 Thus, even if regard is had to the further material upon which the Applicant sought to rely, no basis exists for concluding that the advice given to the Applicant was inappropriate. 36 That conclusion is enough to dispose of the first basis upon which the Applicant relied in seeking leave to withdraw his plea. However, it is also appropriate to again point out that the fundamental principle behind allowing the withdrawal of a plea is the ensuring that there is no miscarriage of justice - see R v Chiron (1980) 1 NSWLR 218 at 235 and the cases there cited; R v Kouroumalos [2000] NSWCCA 453 at [16]. As a guilty plea amounts to a confession of guilt and an admission to all of the elements in the offence to which the plea was offered, it is fundamental to allowing its withdrawal that it be shown that the person pleading did not entertain a genuine consciousness of guilt and that there be some factor demonstrated going to the integrity of the plea. That the second of these ingredients is necessary is demonstrated by the decision in Meissner v R (1994 -1995) 184 CLR 132 at 141 and 157 where the High Court made it clear that no miscarriage of justice arises if a person pleads guilty even if that person is not guilty providing the plea was entered in the exercise of a free choice. 37 Although some of the cases upon which reliance was placed by the Appellant contain statements in unequivocal terms to the effect that a plea may be allowed to be withdrawn if the person pleading was not in possession of all the facts or had received imprudent or inappropriate advice, such statements should not be regarded as encompassing all and any fact or imprudent or inappropriate advice. The "facts" or evidence or advice involved in criminal trials and relevant at a time when consideration is being given to the entry of a plea of guilty are liable to cover a wide area. They may include reference to the statutory specification of the elements of an offence or of a relevant defence. They may, as in this case, include one or more discrepancies or inconsistencies in the evidence of a Crown witness: They may include less than 100% positive identification of an offender, or arguably obvious pauses (revealed on video tape) before an identification is made: They may include a variety of matters having no relevance except to the credibility of a witness. Advice as to the likely result of a contested trial may vary from the very positive to the most pessimistic with all shades of grey in between. Mere error, even imprudent or inappropriate error, in these matters is not sufficient to justify allowing the withdrawal of a plea. As the Chief Justice pointed out during the course of argument in the case, the topic of advice is not to be approached as some sort of forensic game. To justify allowing the withdrawal of a plea, an error must be one that affects the integrity of the plea. 38 Thus in R v Davies (1993) 19 MVR 481, the charge was one of culpable driving and the fact under consideration was whether the Appellant, who clearly had not been in full possession of his faculties at the time of making admissions to that effect, was the driver. In Ganderton (Unreported, CCA 17 September 1998) the Appellant had pleaded guilty to an offence of aggravated dangerous driving causing grievous bodily harm, to which charge there was a defence if the "grievous bodily harm occasioned by the impact was not in any way attributable … to the fact that the person charged was under the influence of intoxicating liquor". Sperling and Greg James J observed:- "Belief by the accused that he is guilty of the offence charged may arise from a mistaken or possibly mistaken understanding of the facts, as in Davies . It may also arise from a failure on the part of the accused's legal representative to inform the accused accurately of the elements of the offence, so that the accused incorrectly believes that the facts as alleged and admitted constitute the offence charged. Liberti (1991) 55 A Crim R 120 was such a case." 39 In Liberti (1991) 55 A Crim R 120 the Appellant had pleaded guilty to the supply of drugs in the apparent and erroneous belief that minding them for another constituted supply. 40 In Davey (Unreported, NSWCCA, 23 March 1995) the Appellant was allowed to withdraw his plea of guilty to a charge of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug, that plea having been entered after the Appellant was wrongly informed by the judge before whom the Appellant appeared unrepresented that the Appellant's belief as to quantity was irrelevant. 41 In Favero [1999] NSWCCA 320, the Appellant had, on advice, pleaded guilty. The circumstances were described by Sully J as follows:- "…the applicant had not had any, or any competent, advice that laid out before him, in a way that permitted the taking of proper relevant instructions, the nature and scope of the defences that might be lawfully available to him in connection with charges of the kind that had been preferred against him." 42 That advice omitted to inform the Appellant that, on the known facts, there were arguable defences available to him. 43 In Wilkes (2001) 122 A Crim R 310 certainly some of the errors were similar to some relied on by the Appellant here. However, the imprudence or inappropriateness of the advice was far more substantial than in this case. There counsel had advised the Appellant to the effect that evidence given by the Appellant's brother meant that the case would be lost, that he should plead guilty as there was no effective way of defending the case and that by pleading guilty, the appellant could save some years off the sentence. Later counsel himself said that he had been mistaken in the advice given. He had not advised the Appellant that provocation was a possible defence based on the statement of one Crown witness to the effect that the deceased had presented a knife, not advised that manslaughter was a possible verdict, not advised of challenges that could be made to some identification evidence and that a warning to the jury about identification evidence would be required, and not adverted to a number of matters that could have been a fruitful source for cross-examination of a Crown witness whom counsel had told the Appellant would be believed. 44 McLean (2000) 121 A Crim R 484 was not a case of withdrawal of a plea but an appeal against sentence upon the ground that in connection with the sentencing proceedings the Applicant had been inappropriately advised. The offence was one of conspiracy to import a commercial quantity of cannabis. Quantity was therefore a very relevant factor. The Applicant denied that he had been involved with anything like the 21 tons that the Crown claimed. Among the failures of his legal advisers that led to the appeal being allowed was that the Applicant was not told that he could ask the sentencing judge to examine for himself the Crown evidence on sentence to see if it supported the Crown claim and was told that if he wanted to challenge that claim by entering the witness box he could be cross-examined upon the topic of the identity and roles of his co-conspirators, an event the offender was not prepared to run. Wood CJ at CL, with the concurrence of the other members of the Court, having expressed the view that the latter advice was questionable, observed that, "(e)xercising due care of the proper protection of the interests of a person facing sentence for a charge that attracted a possible sentence of life imprisonment, these matters should have, in my view, been explicitly and carefully raised by the applicant's legal advisers". 45 Here, I see no grounds for concluding that any errors in the advice given to the Appellant affected the integrity of his plea. Thus I am of the view that the Appeal against the refusal of Marien DCJ to permit the Appellant to withdraw his plea should be dismissed. 46 I turn to the application for leave to appeal against sentence. The indecent assault offence is contrary to Section 61M(1) of the Crimes Act and carries a maximum penalty of 7 years imprisonment. Pursuant to Section 54A of the Crimes (Sentencing Procedure) Act it also carries, in the circumstances contemplated by those sections, a statutory non-parole period of 5 years. Of course, in light of the fact that the Applicant pleaded guilty, and his offence was assessed as falling below the midpoint of objective seriousness the standard non-parole period does not apply. Nevertheless, both of these statutory provisions provide a guide against which the sentence imposed on the Applicant may be compared. 47 The Applicant was 35 at the time of the commission of the offences. As has been said he had made contact with the complainant on the internet and had then effected a meeting with her at her home, that she went for a drive with him during which the indecent assault activity occurred. The statement of agreed facts records that prior to the meeting the Applicant had asked the complainant, "can I finger you" to which he received a negative reply. During the drive the Applicant had said to the complainant, "bet ya I could grab your pussy" to which she responded "I don't want you to". Whether or not at that stage the Applicant was aware the complainant was as young as 14, the fact of a very substantial difference in their age must have been apparent. His conduct after this discouragement was a gross abuse of the situation he had encouraged to arise. 48 O'Connor DCJ accepted in the Applicant's favour that the offence did not extend over a lengthy period, that the victim was able to leave without being prevented from doing so, that the complainant remained fully clothed, and that prior to the offence the Applicant was a person of good character and was unlikely to re-offend. His Honour also found the offence was not part of a planned criminal activity, that a discount of 15% should be allowed for the Applicant's plea and that the offence fell below the mid-point of objective seriousness. 49 There is clearly something to be said for the view that in these last two matters his Honour was unduly generous to the Applicant but I am prepared to proceed upon the basis of them. However, as was observed in R v Dagwell [2006] NSWCCA 98 at [41]:- "Users of the internet chat room should be well aware that crimes committed in such circumstances are treated with great concern by the Criminal Justice System and will be dealt with severely. Children must be protected from themselves and from those who prey on their vulnerability by gaining access to them through means such as that used by the Respondent. The only way this policy can be achieved is by the courts imposing condign punishment upon those convicted on such offences in the hope that others, who, minded to act in the same way, might fear the consequences if they are caught." 50 On account of the factors to which reference has been made, the Appellant's offending was serious. It was premeditated and persisted in. The sentence imposed - a full term of 21 months and a non-parole period of 9 months - is so far removed from the periods specified in the statutory provisions to which reference has been made that, when regard is had to the magnitude of the Appellant's criminality, it is impossible to conclude that the sentence is manifestly excessive. 51 I would grant leave to appeal against sentence but dismiss the appeal. 52 LATHAM J: I agree with Hulme J and the additional remarks by Spigelman CJ. **********

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