Green, Al v R

1. [1]

   BASTEN JA: On the night of 13 January 1984 a 17 year old woman alleged she had been sexually assaulted in a car not far from the Hume Highway at Marulan. Although she went immediately to the police, the present applicant was not arrested and charged in relation to the assaults until 3 September 2012. The identification of the applicant resulted from a DNA profile which had been obtained from him and which matched that of semen taken from the complainant’s jumper following the assaults.

2. [2]

   On 16 September 2013 the applicant entered pleas of guilty to an indictment containing five counts, namely:

3. [3]

   The applicant failed to attend at the sentence hearing and a warrant was issued for his arrest. He was arrested on 28 August 2014. Following his arrest, his solicitor foreshadowed an issue as to his fitness to plead and a motion to withdraw the pleas of guilty. On 28 May 2015 the question of fitness was assessed by Judge Haesler SC in the District Court at Sydney. The applicant was found to be unfit to plead and the matter was referred to the Mental Health Review Tribunal. On 4 September 2015 the Tribunal determined that the applicant had become fit.

4. [4]

   There was a further hearing with respect to the applicant’s fitness to plead in March 2016, Judge Frearson SC determining on 16 March 2016 that he was fit to be tried.

5. [5]

   In June 2016 Frearson DCJ heard an application to withdraw the pleas of guilty. On 5 October 2016 Frearson DCJ refused the application and fixed the matter for hearing as to sentence. On 2 December 2016 the judge imposed an aggregate sentence with a non-parole period of 4 years 4 months to date from 28 August 2014 and an additional term of 3 years and 6 months, giving a total sentence of 7 years and 10 months.

6. [6]

   Pursuant to a notice of appeal filed on 25 August 2017 the applicant sought to appeal both his convictions and sentence. The notice of appeal contained 12 grounds. Grounds 1-8 alleged that the pleas were “unsafe and unsatisfactory” in a number of respects; grounds 9-11 challenged the judgment of Frearson DCJ refusing the application to withdraw the pleas. Ground 12 challenged the sentence, apparently on two grounds, namely that it (i) was manifestly excessive and (ii) resulted from inappropriate reliance on a pre-sentence report.

7. [7]

   The jurisdiction of this Court is limited, relevantly for present purposes, to appeals against convictions on indictment and against the sentence passed on a person’s conviction on indictment. [1] The Court does not entertain a fresh application as to the circumstances in which the pleas were entered, but rather determines whether the applicant was properly convicted. That exercise involves, in effect, an appeal from the judgment of Frearson DCJ, refusing leave for the applicant to withdraw his pleas and entering the convictions. Accordingly, each of grounds 1-11 will be considered by reference to the judgment refusing the applicant leave to withdraw his pleas.

8. [8]

   As the grounds on which the pleas were said to be “unsafe and unsatisfactory” all involved factual assertions or complaints as to the exercise of evaluative judgment, there is no appeal as of right and accordingly the applicant requires leave to appeal against his convictions. [2]

9. [9]

   There is one further procedural matter to be noted before dealing with the applications. The notice of appeal was filed by the applicant personally. He has not been represented at any stage in this Court. When the matter was listed for hearing he indicated that he did not wish to appear and was relying solely upon his written material. He maintained that position after being served with a copy of the written submissions for the Director. Accordingly, the matter is being dealt with on the papers.

(a) legal principles

1. [10]

   The legal principles relevant to such an application were recently identified by the Court in Senior v R, handed down on 11 September 2017. [3] The common bases upon which a party may be permitted to withdraw a plea include the following:

2. [11]

   With respect to the applicant, the principal concern of the primary judge, though not one raised by the applicant himself, was that he suffered from a mental illness which precluded a voluntary and informed decision to plead. The trial judge dealt with that issue at some length, before rejecting it. It will be appropriate to address that issue shortly. The need to address the issue stemmed from the principle stated in Meissner v The Queen [4] that a plea will be accepted when it is entered in open court “by a person who is of full age and apparently of sound mind and understanding”, the counter implication being that the court will not act on a plea if satisfied that the person is not of sound mind and understanding.

3. [12]

   It is also said that a plea should be “attributable to a genuine consciousness of guilt”, as explained by Giles JA in Regina v SL. [5] That is not to say that there may not be other subjective motivations, but only that the accused must understand that the action being undertaken involves an acceptance of guilt of the charge. As explained by Dawson J in Meissner: [6]

4. [13]

   The primary judge considered each of these factors and also the allegation that the applicant had been pressured into pleading by his legal representatives either because they were unprepared to run a trial, or because they were colluding with the prosecutor.

(b) background material

1. [14]

   The first step was to identify the period during which relevant steps were taken which culminated in the applicant entering pleas in open court before Hosking ADCJ on 16 September 2013.

2. [15]

   The earliest relevant material relating to his representation is a lengthy email from Mr Slade Howell, a solicitor in the Criminal Indictable Section of Legal Aid NSW, to the applicant’s counsel, Mr Paul Winch. Apart from detailed notes of the instructions which Mr Howell received, and the matters he had raised with the applicant, there were two passages relevant to the present issue. First, there was a passage relating to his mental health which was in the following terms:

3. [16]

   With respect to dealing with the charge, Mr Howell recorded the following:

4. [17]

   On 9 August 2013 the applicant conferred with Mr Winch and Mr Howell in the Public Defenders’ chambers. The file notes were clearly thorough and comprehensive; the flow of topics may readily be followed. Part of the conversation related to the record of a police interview with the applicant on 13 September 2012. In the course of the interview, the following exchange occurred:

5. [18]

   The note of the conference included Mr Winch taking him to the transcript of the record of interview and suggesting that his instructions were inconsistent with what he had said in the interview. The note continued:

6. [19]

   After a restatement of his instructions, the following appeared:

7. [20]

   After resolving that Mr Howell would contact the Crown to see what scope there was for negotiation of the charges on the indictment, the note recorded that there was then “some discussion with Mr Green about his current Community Treatment Order and contact with the Marrickville Community Mental Health Service.” The last paragraph included the following statement:

8. [21]

   After the conference, Mr Howell and Mr Winch had a conference together (without the applicant) in which one of the matters agreed upon was to obtain a psychiatric assessment of the applicant. In fact, Mr Howell arranged for the applicant to see Dr Richard Furst, but the consultation did not take place until 5 November 2013. By that stage, the applicant had agreed to plead guilty to five offences, with two other offences to be taken into account on a Form 1.

9. [22]

   There was a further conference on 10 September 2013 between the applicant and Mr Howell. The handwritten notes cover a little over 9 pages. They cover numerous issues relating to a possible plea, negotiations with the prosecutor and the possibility of a trial. It is clear that Mr Winch repeated his explanation that there were inconsistencies between the complainant’s account and the objective evidence of medical examination supporting her account, on the one hand, and the applicant’s instructions on the other. The notes indicated that the applicant was given a clear choice as to whether to go to trial but said that he did not want to go to the jury. The applicant was told, “the decision is yours.” The conference concluded with the possibility of some further negotiations and the need for signed instructions when those were completed. A further conference was planned for Friday, 13 September 2013. On that day, the applicant signed a document headed “Instructions” in the following terms:

10. [23]

    A four page statement of facts was initialled by the applicant under the words, “I understand these are the court relied upon facts – uncontested as trial not wanted”, in his own handwriting. There was then a file note by Mr Howell of the appearance at Sydney District Court on 16 September 2013 including the following paragraphs:

11. [24]

    It follows that the first relevant period during which the applicant’s mental condition was to be considered was, in effect, a six week period from the beginning of August to 16 September 2013. A second potentially relevant period was from 16 September 2013 to 16 January 2014.

12. [25]

    Dr Furst saw the applicant on 5 November 2013. Dr Furst noted that the applicant had been admitted to Waratah House in Campbelltown Hospital in September 2012 for a period of seven weeks, following which he was discharged on a Community Treatment Order. His diagnosis at that time was bi-polar disorder and/or schizophrenia. Dr Furst also noted that he “is stressed about his current legal proceedings and impending incarceration.” He noted that the applicant had been assessed “on a regular basis over the last 12 months, attending for depot injections of his medications and psychiatric reviews.” He stated that there were “no signs of psychosis on mental health reviews between January and August 2013.” The only suggestion of difficulties in the relevant period was the following passage:

13. [26]

    No further psychiatric report was obtained until 1 November 2014 when Dr Olav Nielssen reported on an interview by audio-visual link which had occurred on 29 October 2014. At that stage, as Dr Nielssen noted, the applicant “had applied to reverse the plea of guilty he made to a charge of sexual intercourse without consent … [on the basis] that he was mentally unstable when he agreed to plead guilty, and also that he believed he was coerced into making the plea by his then legal representatives.” Dr Nielssen’s diagnosis was “[r]elapsing psychotic illness, either schizophrenia or schizo-affective disorder.” He was asked a number of questions as to his likely mental state between 3 September 2012 and 16 September 2013. Dr Nielssen noted that he did not have records from Marrickville Community Health Centre which would allow him to determine whether or not the applicant had been receiving the prescribed depot injections on a monthly basis. Those were later provided and a further report was prepared dated 28 November 2014. Dr Nielssen answered the specific questions as follows:

14. [27]

    It should be noted that neither his solicitor nor his counsel, who spoke to him for some time on both dates, and who were aware of a past history of mental illness, recorded any concern as to his then current mental state.

15. [28]

    Both Mr Howell and Mr Winch gave evidence before Judge Frearson. There was no suggestion by them that the applicant appeared other than capable of forming an opinion and entering pleas. The applicant also gave evidence and, apart from stating that he was “very heavily medicated” and that his “thought processes was not quick”, expressly disclaimed mental impairment as a ground of his application. [8]

16. [29]

    The final psychiatric report was that of Dr Jonathon Adams dated 7 May 2015 and provided to the Office of the Director of Public Prosecutions. Dr Adams saw the applicant in prison on 17 March 2015 and 22 April 2015. He opined that the applicant was “experiencing symptoms of mental illness during both the assessments” and that his responses were “tangential and frequently difficult to follow, indicative of thought disorder, and in my view he manifested a delusional belief system.” He was provided with the reports of Dr Nielssen, police statements, the statement of agreed facts and a DVD of the applicant’s interview with police. He also had medical records from Campbelltown Hospital and Marrickville Health Centre. The Marrickville records appear to have continued beyond the records available to Dr Nielssen. Thus there were documented attendances on 7 August 2013, 22 August 2013, 18 September 2013 and 15 October 2013. With respect to the entry dated 18 September, Dr Adams identified a notation, “Al reports low mood. Expects to return to jail January 2014 for a lengthy period … he has Legal Aid support. Requests letter from MO [medical officer] for Court confirming MHC/MHS contact. No acute risks identified. Slightly restricted affect.”

17. [30]

    Dr Adams was asked to address the question:

(c) reasoning of primary judge

1. [31]

   The primary judge referred in some detail to the challenge to the evidence of Mr Howell, including an allegation that his notes had been deliberately manipulated and that he did not give the explanations of the issues in the case in the way that he said were given by Mr Winch and himself. The judge also noted the suggestion that the applicant had not given instructions to negotiate and that he had merely initialled his instructions and the statement of agreed facts, rather than using his full signature, as a form of “protest”, in the hope that he would be able to get other counsel to appear for him at a trial. The judge was affirmatively satisfied that the applicant gave instructions to negotiate and agreed to plead to the negotiated charges with the two matters on a Form 1. He continued: [9]

2. [32]

   The judge continued: [10]

3. [33]

   After reviewing the medical evidence, the judge stated: [11]

(d) applicant’s grounds of appeal

1. [34]

   As was the case before the primary judge, the applicant did not seek to rely upon any issue with regard to his fitness to plead. However, the Court would not leave the judgment below on foot if it were to be satisfied that, at the time pleas were negotiated and entered the applicant was in fact unfit to exercise a free and informed choice as to the course of the proceedings.

2. [35]

   Given the medical evidence and the lack of any concern as to fitness on the part of his legal representatives, there is no reason to doubt the correctness of the conclusions reached by the primary judge in this respect.

3. [36]

   So far as the grounds raised in the notice of appeal and the written submissions in this Court are concerned, the applicant relied upon (i) his complaints about the conduct of his legal representatives, alleging improper pressure, inadequate advice and wrong advice, including misrepresenting the prosecution case (grounds 1, 2, 3, 5 and 8); (ii) collusion with the prosecution, in the absence of instructions to negotiate (ground 4); (iii) a challenge to the manner in which the charges were formulated and later changed (ground 6); (iv) procedural unfairness during the District Court hearing (grounds 7 and 10), and (v) the weakness of the prosecution case on the facts (grounds 9 and 11).

4. [37]

   To the extent that these grounds challenge the conduct of the applicant’s legal representatives in preparing a defence, advising the applicant, negotiating with the prosecution and preparing the necessary material for the pleas, the submissions repeated in abbreviated form the points raised before the primary judge. They did not demonstrate any error in his findings or raise any concern that these complaints involved a miscarriage of justice.

5. [38]

   His allegation of procedural unfairness during the District Court hearing related to the judge’s interference in the applicant’s conduct of his case, including his cross-examination of Mr Howell. As is apparent from the transcript, that cross-examination was lengthy and the judge was clearly concerned that many questions did not bear on any issue which he was required to determine. Furthermore, the questions were often poorly formulated and on several occasions the judge intervened to reformulate the issue. When the applicant became frustrated and needed time to collect his thoughts, the cross-examination of Mr Howell was suspended and he was required to return on a second occasion. This course suggested an anxious attempt to assist the applicant, so far as was possible.

6. [39]

   The second aspect of the complaints as to the District Court hearing appears to concern the failure of the trial judge to engage with the submission concerning the reformulation of the charges and the unfairness to the applicant resulting from those changes. It is true that the primary judge did not address that issue in those terms; it is also true that there was some reformulation of the charges. Nevertheless, the process was entirely regular and there was no basis to allege unfairness in relation to the pleas of guilty.

7. [40]

   So far as the applicant raised concerns that there was a weak prosecution case, which should have resulted in the rejection of the pleas, the underlying premise was false. As the primary judge stated: [12]

8. [41]

   The applicant relied before the primary judge on two main considerations in this regard. First, he tendered a copy of the notes taken by Dr Gillespie at Queanbeyan District Hospital of a consultation with the complainant, which recorded in very brief form her description of the events of the previous night. The applicant stated that there were inconsistencies between the account recorded in those notes and the account given to police. That was true, but arose, in part, from the fact that the doctor was recording his opinions as to what had occurred and in part because the statement taken by police was far more detailed. The medical notes may possibly have formed the basis for some cross-examination of the complainant, but it is unlikely that they would have significantly affected her credibility.

9. [42]

   Secondly, the applicant argued that there was a discrepancy between the complainant’s evidence that she, like he, was 17 at the time of the offending and a statement in the Queanbeyan Hospital notes which indicated she had been born a year earlier and was therefore 18. The applicant, on the basis of this fact, alleged that she was guilty of “statutory rape” and that he was the victim.

10. [43]

    The source of the date in the hospital notes is not known; the agreed facts gave the complainant’s date of birth which, consistently with her statement to police, identified her age as 17 years at the date of the events the subject of the charges.

11. [44]

    These matters cast no significant doubt on the strength of the prosecution case and have no bearing on the acceptance of the pleas of guilty.

(e) conclusion – refusal of leave to withdraw pleas

1. [45]

   The applicant’s challenge to his convictions, based on the refusal of the primary judge to allow him to withdraw his pleas of guilty was without substance. Because concerns as to his mental state warranted appropriate consideration both in the District Court and in this Court, there should be a grant of leave to appeal from the convictions, but the appeal must be dismissed.

(a) sentencing for old offences

1. [46]

   The application for leave to appeal against the aggregate sentence imposed by the primary judge requires reference to the historical nature of the offending and the objective seriousness of the offending.

2. [47]

   The offence of detaining for advantage was laid under s 90A of the Crimes Act 1900 (NSW) (repealed in 2001). The maximum sentence depended upon whether the victim was released “without having sustained any substantial injury”, in which case the maximum sentence was 14 years; in other cases, the maximum sentence was 20 years. The judge was satisfied that the complainant had not sustained substantial injury and the lesser maximum was therefore engaged.

3. [48]

   The other four counts involved charges under then s 61D(1) of the Crimes Act which carried a maximum sentence of 7 years. (The equivalent provision is now found in s 61I of the Crimes Act and carries a maximum sentence of 14 years.) However, the applicant was required to be sentenced (and was sentenced) in accordance with sentencing law in force at the time of the offending. That course is required in relation to any provision which increases the penalty for an offence, in accordance with s 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). However, absent a relevant transitional provision, the sentencing judge must have regard to the provisions of the current legislation, including the purposes of sentencing identified in s 3A of the Sentencing Procedure Act.

4. [49]

   There remained a question as to whether, beyond the express terms of s 19, a sentencing judge was required to “take into account the sentencing practice as at the date of the commission of an offence” when that practice has since moved adversely to an offender. In R v MJR, [13] Spigelman CJ held that a sentencing judge should not “refuse to take into account” sentencing practices contemporaneous with the offending.

5. [50]

   As has been noted in later decisions, that approach is not without its practical difficulties. [14] In a case dealing with an offence which took place in 1986, RL v R, [15] this Court made the following observations:

6. [51]

   The judge expressly stated that he was “factoring in what would have happened in 1985”, [18] that, no doubt, being the time at which he would have expected the matter to have been resolved had the police investigation resulted in a prompt arrest and charging. There was no error in that approach.

7. [52]

   There may be other factors which should properly affect the sentence imposed for an old offence. First, in circumstances where the delay was not the fault of the offender, there is room for a degree of mitigation of the otherwise appropriate penalty based on the fact that knowledge of the potential liability to a term of imprisonment may have preyed upon his mind and caused stress and anxiety over the years. There was no evidence to suggest that that was a relevant factor in this case. The judge stated that this was not a case where “the offender has actually had it hanging over his head for many years because for many years he thought that he did absolutely nothing wrong”. [19]

8. [53]

   Secondly, the lapse of a period of time during which an offender has led a blameless (or relatively blameless) life may indicate that the need for personal deterrence carries little weight. That consideration was not engaged in the present case. Having recounted the offender’s record, the judge noted that this was not a case where the offender has “been able to demonstrate rehabilitation by reason of the delay”. [20]

9. [54]

   Thirdly, where the old offence was the start of a long line of offending, the appropriate sentence should reflect the fact that the offender would, if he had been sentenced near the time of the offending, have received a lesser sentence because the lack of a serious criminal record would have warranted leniency. [21] This last factor is one which was relevant to the circumstances of the applicant. The primary judge expressly referred to the offender’s age at the time of the offences and the complicated history of the matter, noting that the offender was a juvenile at the time of the offending and acknowledging “the significance of youth.” He then stated: [22]

10. [55]

    Having dealt with the subjective circumstances of the offender, the judge concluded with an assessment of the various factors which he needed to address, stating: [23]

(b) reliance on pre-sentence report

1. [56]

   The primary judge had before him a pre-sentence report prepared by a Community Corrections Officer at Silverwater Parole Unit, dated 30 November 2016. The judge noted that the report had been “furnished expeditiously and it is of great assistance.” [24]

2. [57]

   The applicant’s complaint in relation to the pre-sentence report was that “the judge erred in ordering the extra two years penal servitude, on reliance of the pre-sentence report recommendations”. The explanation of this complaint lies in the submission made by the applicant to the primary judge that he should not receive any further period in custody once account had been taken of the practical effect of the bail conditions imposed following his arrest in September 2012 until he failed to appear for sentencing in January 2014, together with the period of custody from 28 August 2014 until the date of sentencing in December 2016. The judge expressly stated that he took into account the period spent on bail subject to “rather stringent bail conditions” [25] and back-dated the sentence of imprisonment to 28 August 2014. The effect was that there remained a two year non-parole period from December 2016 to December 2018, which appears to be the additional two years referred to in the ground of appeal.

3. [58]

   The next step in the reasoning was that the sentence was given in order to accommodate the assessment made in the pre-sentence report which was in the following terms:

4. [59]

   In his written submissions, the applicant denied that he was seen by a CSNSW psychologist in November or December 2016 for a sex offender risk assessment dated 30 November 2016. He included with his submissions a letter dated 2 August 2017 responding to an application under the Government Information (Public Access) Act 2009 (NSW) for his health records, which listed no such report as appearing in his health records.

5. [60]

   In summarising the pre-sentence report, the primary judge dealt with the passage referred to above briefly in the following terms: [26]

6. [61]

   If the applicant sought to draw an inference that the length of his non-parole period was fixed in order to allow him time to complete a course of treatment in prison, the inference must be rejected. It is both inconsistent with common sense and with the reasoning of the sentencing judge, who merely referred to the course in one sentence in a 19 page judgment. The objective seriousness of the offending and the multitude of other matters discussed in the judgment warranted, for reasons dealt with below in respect of the ground of manifest excess, the sentence in fact imposed. The alleged error would not warrant a grant of leave to appeal against the sentence.

(c) manifestly excessive sentence

1. [62]

   The most important considerations affecting the aggregate sentence imposed were the objective circumstances of the offending. The following descriptions are taken from the statement of agreed facts:

2. [63]

   The judge described the offences as “very serious examples” of the type of offence and stated that “[t]he only thing that the offender has going for him in terms of the gravity of the offences was his relative youth.” [27]

3. [64]

   The judge also noted the psychiatric conditions suffered by the offender including a diagnosis of post-traumatic stress disorder resulting from violence (including a murder) witnessed whilst in gaol. He concluded: [28]

4. [65]

   Having indicated that he proposed to impose an aggregate sentence pursuant to s 53A of the Sentencing Procedure Act, the judge then indicated the individual sentences which would otherwise have been imposed: [29]

5. [66]

   The judge then imposed an aggregate sentence comprising a 4 year 4 month non-parole period to date from 28 August 2014, expiring on 27 December 2018, with an additional term of 3 years 6 months, leading to a total sentence of 7 years and 10 months. He found special circumstances because of the applicant’s psychiatric condition. He expressed his view that the effective non-parole period was “the minimum that could possibly accommodate the objective seriousness of the offending conduct”. [30]

6. [67]

   The written submission as to manifest excess was in the following terms:

7. [68]

   There is no basis to challenge the term of the sentence, or of the non-parole period, which was only 55% of the total term of imprisonment.

8. [69]

   There is no basis to justify a grant of leave to appeal with respect to the sentence imposed.

Conclusions

1. [70]

   For these reasons, the Court should make the following orders:

   1. (1)

      Grant leave to appeal with respect to the convictions entered on pleas of guilty.

   2. (2)

      Dismiss the appeal against the convictions.

   3. (3)

      Refuse leave to appeal against the aggregate sentence.

2. [71]

   R A HULME J: I agree with Basten JA.

3. [72]

   GARLING J: I agree with Basten JA.