Brent Gilbert v The Queen
[2018] VSCA 49
•5 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0073
| BRENT GILBERT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 22 and 23 February 2017 |
| DATE OF JUDGMENT: | 5 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 49 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1815 (Judge Lawson) |
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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction notwithstanding plea of guilty – Whether permitting applicant’s plea of guilty to stand would result in a miscarriage of justice – Whether applicant’s instructions traversed plea of guilty – Whether applicant’s instructions were inconsistent with plea of guilty – Applicant’s instructions did not traverse plea and were not inconsistent with plea of guilty – No grounds for impugning applicant’s plea – No miscarriage of justice – Application for leave to appeal against conviction refused.
CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Applicant sentenced to term of imprisonment of 10 years with non-parole period of 7 years – Crown concession of vitiating error – Crown concession properly made – Judge relying on aggravating circumstances not established beyond reasonable doubt – Disputed facts – Need for conclusion adverse to applicant to be established beyond reasonable doubt – Need for contested plea hearing – Need for parties to call evidence on the plea – Application for leave to appeal granted – Appeal allowed – Matter remitted for rehearing before different judge.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue & George |
| For the Respondent | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
BEACH JA
KYROU JA:
On 12 August 2016, the applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury. The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.[1]
[1]Crimes Act 1958, s 16.
On 9 December 2016, following a plea hearing conducted on 24 November 2016, the applicant was sentenced to a term of imprisonment of 10 years with a non-parole period of seven years.[2] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, she would have sentenced him to a period of 13 years’ imprisonment with a non-parole period of nine years.
[2]DPP v Gilbert [2016] VCC 1815 (‘Reasons’).
Notwithstanding his plea of guilty, the applicant now seeks leave to appeal against his conviction and sentence. His proposed grounds of appeal against his conviction are:
1.A miscarriage of justice has occurred because the applicant’s plea of guilty to the charge of intentionally causing injury was made in circumstances where he did not intend to admit that he was guilty of that offence and the plea of guilty was not accompanied by a genuine consciousness of guilt.
2.A miscarriage of justice has occurred because the sentencing judge accepted, and proceeded to act upon, the applicant’s plea of guilty in circumstances where the instructions of the applicant traversed the plea and were inconsistent with the plea of guilty.
The applicant’s proposed grounds of appeal against sentence are:
1.The sentencing discretion miscarried because the sentencing judge failed to accord procedural fairness to the applicant.
PARTICULARS
That the sentencing judge would rely and act upon the untested VARE recording of Shelby Mulcahy without informing the applicant of the basis upon which it would be relied and without providing the applicant with an opportunity to make submissions as to how the sentencing judge should rely upon the VARE.
2.A substantial miscarriage of justice has occurred because of the failure of counsel to adduce evidence of the applicant’s explanation for the offending.
3. The sentence imposed upon the applicant is manifestly excessive.
PARTICULARS
a) Plea of guilty;
b) No prior convictions;
c) Significant family support;
d) Deterioration of mental health in the period leading up to the offence;
e) Diagnosis of Autism Spectrum Disorder (ASD);
f) Difficult developmental history;
g) Full time parent to two young children;
h) Good prospects of rehabilitation.
Background circumstances
The event that constituted the charge of intentionally causing serious injury was a stabbing that occurred in the early hours of 11 September 2015. The applicant, in circumstances which are disputed, stabbed the complainant, Ms Rebecca Mulcahy.
On 10 September 2015, the complainant was living with her two children, Lachlan aged seven and Shelby aged five. At that time, the complainant was in a relationship with Mr Leigh Blogg. Mr Blogg is the father of Lachlan and Shelby. As at September 2015, he did not live with the complainant but he occasionally stayed at the complainant’s home. The applicant and Mr Blogg were friends. The applicant also knew the complainant. The applicant had purchased cannabis from the complainant in the week before 10 September 2015.
On the evening of 10 September 2015, the applicant went to the complainant’s home. The complainant was at home with her two children and Mr Blogg. During the course of the evening, and while the applicant was at the complainant’s home:
·Mr Blogg went to bed and fell asleep;
·the applicant began to ask for drugs; and
·a target was drawn on the pantry door in the kitchen, and knives were thrown at it.
At about 1:30 am on 11 September, the applicant and the complainant drove to a BP service station in order to withdraw money from an ATM to purchase drugs. After the applicant withdrew some money, the complainant telephoned acquaintances in order to organise the purchase of cannabis. The complainant was, however, unsuccessful in her attempt. The applicant and the complainant returned to the complainant’s house.
Subsequently, Mr Blogg woke up and had an argument with the complainant. Mr Blogg left the house soon after. It was after this that the applicant stabbed Ms Mulcahy. The complainant gave an account of being attacked by the applicant with a knife. In the Summary of Prosecution Opening tendered on the plea, the prosecution said that the complainant ‘gave an account of that attack according to her memory’,[3] and that ‘The prosecution does not say her memory of exactly how that attack was carried out is a perfect memory’.
[3]Emphasis in original.
The complainant’s account was that the applicant appeared agitated and asked the complainant for Valium. The complainant then asked the applicant to leave. She opened the front door and as he walked over the threshold to leave, the applicant struck her with a knife to the face and body near the front door. The complainant then went to a neighbour’s house for help. A call was made to 000 and the complainant was transported to hospital in an ambulance.
Upon attending at the house, police found the broken handle of a knife inside the front door, the blade of a knife in the lounge room, broken from its handle, and the bent blade of a knife in a pool of blood in the kitchen. Photographs were taken of
the scene. These showed blood in the house, with a pool of blood in the kitchen, and blood smeared on an internal wall near the front door.
Forensic evidence was gathered. A forensic scientist, Mr Steven Fowler, after examining relevant evidence, expressed the opinion that there had been an altercation in the kitchen and that a heavily bloodstained person smeared the internal wall near the front door with blood. Mr Fowler also observed that the pool of blood on the kitchen floor was near a broken dog’s bowl and that the blood on the kitchen floor was diluted. The bent blade of a knife was located in the pool of diluted blood.
The applicant went home and woke his wife, Ms Joanna Gilbert, at approximately 5:30 am. He said to his wife, ‘I need to speak to you, I think I just killed someone.’ He then went on to say, ‘the crazy bitch went off her head at Leigh (Mr Blogg) and Leigh took off. She kept going and said something about hurting her kids … and then she came at me with a knife … so I had to defend myself.’ The applicant also told his wife that he had ‘kids pulling me hair and dogs biting me and in the end I had her (or got her) in a strangle hold and she was still trying to stab me.’ The applicant also said to his wife that after the complainant had been stabbed, he had put her in a strangle hold and she passed out; and that the complainant later asked him to let her go and that he had replied by saying words along the lines of, ‘You’ve got a big hole in your head.’
Photographs were taken, and medical records obtained, of the complainant’s injuries. Expert medical evidence in relation to the complainant’s injuries was obtained from the Victorian Institute of Forensic Medicine. The medical evidence was that the complainant’s injuries included 6 sharp force injuries to her face, four sharp force injuries to her back which resulted in air penetrating the lung spaces and tissues in the back, damage to the left thumb, compressive trauma to the neck and a wound to the right arm. Expert opinion was that the damage to the thumb and right arm ‘could be classified as defensive injuries’.
The Crown case was that the stabbing by the applicant of the complainant was witnessed by Shelby, the complainant’s five year old daughter. Shelby gave a VARE (visual and audio recording of evidence) statement to police, in which she referred to the ‘bad guy’ and said that he had two knives. In the course of the VARE Shelby demonstrated how the ‘bad guy’ used a knife in each hand by moving her own hands up and down in front of her body.
On the evening of 11 September 2015, the applicant voluntarily went to the Bendigo Police Station and was interviewed by police. There were concerns about the capacity of the applicant in relation to his participation in an interview, so the police arranged for an independent third person to be present.
When asked whether he knew anything about the stabbing of the complainant, the applicant told police ‘I stabbed her’.[4] He told police that he did it because he ‘felt like it’.[5] When asked why he felt like it, he said ‘Because I wanted to’.[6] When police asked if he could describe why he wanted to, the applicant responded: ‘No, I don’t want to. It’s my business.’[7]
[4]Record of Interview (‘ROI’), question 142.
[5]ROI, question 144.
[6]ROI, question 145.
[7]ROI, question 146.
When asked again, the applicant would not tell the police why he had stabbed the complainant. The applicant said, ‘I don’t want to say why. It’s just — it’s not worth it for me’.[8] The applicant then said:
I stabbed her ‘cause I wanted to stab her. That’s … all I’m gunna say ‘cause I’m not gunna say I was protecting children or anything like that or myself. It’s not worth it. It puts me down just to say it. I stabbed her ‘cause I wanted to stab her ‘cause I’m a piece of shit.[9]
[8]ROI, question 217.
[9]ROI, question 218.
The applicant told police that he stabbed the complainant in the kitchen.[10] Later, the applicant said ‘Yeah, stuff it. She had a knife in her hand, I thought she was gunna kill the kids. I thought she was gunna kill me. I fuckin’ went for her’. The police then said ‘All right. So tell me about it’, to which the applicant replied ‘Probably not kill the kids but I’m not mucking around’.[11]
[10]ROI, question 224.
[11]ROI, questions 268-269.
The hearing in this Court
In support of his applications for leave to appeal against conviction and sentence, the applicant relied upon an affidavit he affirmed on 10 April 2017 and affidavits his father (Mr Leon Gilbert) affirmed on 18 April 2017 and 30 January 2018.[12] The applicant’s and his father’s affidavits related largely to the circumstances in which the applicant came to plead, and ultimately pleaded, guilty. The affidavits made reference to various conversations with, and advice given by, the applicant’s previous solicitor (Mr Luke Docherty) and two members of counsel (Mr Russell Kelly and Mr John Lavery). Mr Kelly was counsel for the applicant on the plea. Mr Lavery had appeared for the applicant earlier in the proceeding, but was not available at the time of the plea hearing.
[12]Additionally, the applicant’s solicitor, Ms Kate Ballard, affirmed an affidavit on 21 February 2018 relating to the results of enquiries she made at the Bendigo police station relating to legal visits to the applicant while he was in custody at that station on 21 and 24 November 2016. For present purposes, however, it is not necessary to make further reference to this affidavit.
As a result of various contentions made by the applicant in his written case about the circumstances under which he pleaded guilty, Mr Docherty, Mr Kelly and Mr Lavery were given an opportunity to respond to the affidavits of the applicant and his father. Mr Docherty, Mr Kelly and Mr Lavery each swore an affidavit about their dealings with the applicant and the circumstances in which the applicant pleaded guilty. On the hearing before this Court, counsel for the respondent cross-examined the applicant, and counsel for the applicant cross-examined Mr Docherty, Mr Lavery and Mr Kelly. During the course of their evidence, various notes, emails, letters and other documents relevant to the dealings between the applicant and his former lawyers were produced and tendered.
The raising of the issue of self-defence and relevant procedural history
The applicant was originally charged with attempted murder, intentionally causing serious injury and recklessly causing serious injury. He was first seen by Mr Docherty on 14 September 2015 in the Bendigo police cells. Over the course of proceedings, Mr Docherty had a number of conferences and discussions with the applicant and other members of his family. Mr Docherty gave evidence that the applicant raised the issue of self-defence very early in proceedings. In his notes of a conference with the applicant on 4 November 2015, Mr Docherty wrote:
She threatening to harm the kids.
She came at him with a knife — standing around kitchen table.
Me nearest the lounge, she near the window.
He grabs her and they fall over his leg — he dodged the knife.
She’s getting madder — he tried to hold her there to calm her down — not working.
Both of them get up.
She still coming at him — he scared she going to get him as he going to the car.
She stabbed Leigh years ago.
He grabbed her hand with the knife in it.
– by the wrist
– he grabbed the knife and stabbed her
– think in the guts? – no injury to stomach.
– from kitchen table to meter [scil, metre] on kitchen side
– still in kitchen area
She pleading with him to stop
– he said you stupid bitch why did you do that?
– ‘stop it, and I won’t tell anyone’ she said
Not sure what went in — re knives/stabs
– still near the table
– she’s facing the door, he’s facing the kitchen
Only trying to calm things down
– she still trying to get to him
Went to the front door in a mingle — a violent mingle
– grabbed her neck by choke hold and she fell to the floor
Wasn’t sure if he’d killed her.
He was defending himself.
She never got him with any knives as far as he knows.
In his notes of a conference with the applicant on 6 November, Mr Docherty recorded the applicant’s description of the complainant ‘lunging’ at him and him grabbing ‘her knife hand’ and ultimately holding her on the floor before letting go ‘to see what happens’. Mr Docherty’s note continued:
She lunges again — both standing up.
He grabs knife at table — starts stabbing her — don’t know where — not sure it connected.
Shaking with fear.
This going on in the kitchen.
She still standing up.
…
She still trying to get him
– he gets her back
– not sure how he gets her in the back
– still in the kitchen
– kids come out.
He’s scared if she going to stab him on the way out
– he goes towards the door
– she comes after him
– choke holds her, and he goes to the car
– she dropped
– he ran
– wrestle.
In an email to Mr Kelly on 17 December 2015, about a bail application that was to be made the following day, Mr Docherty wrote:
Brent is claiming self-defence although I have raised with him bearing in mind where the stab wounds are he will have real problems with that. His instructions are that he went around to the house to see Blogg, the complainant was going off and Blogg left, and so Brent stayed at the house to make sure the complainant didn’t hurt the children. The complainant was drunk and was asking him whether he wanted to watch the TV show Vikings with her. She started throwing knifes (sic) around the house from the kitchen table. He was concerned and tried to stop her but she wouldn’t, so he drew a target on the kitchen cupboard door (you can see the target in the photos) so she would only throw them there.
She did that for a while but was getting angrier and angrier. She was picking up knives from the table (there are some still there in the photos) and throwing them, before she got up and attacked him. They wrestled for a bit and she was stabbed during the wrestle. He tried to run away and she chased him to the front door, he put her in a headlock and she seemed to pass out so he left.
The location of the blood within the house does not accord with the police summary or the complainant’s statement. The complainant leaves a number of relevant matters out of her statement as to where the partner Blogg was during the night and how Gilbert came to be at the address. Gilbert believes that the complainant has been dealt with by the police for stabbing Blogg in the past.
A committal was conducted on 3 and 4 May 2016. Mr Lavery appeared for the applicant. The applicant was committed to stand trial in the Supreme Court on all charges (attempted murder, intentionally causing serious injury and recklessly causing serious injury). The applicant pleaded not guilty to all charges.
Mr Docherty had a telephone conference with the applicant on 13 May 2016. In his affidavit, Mr Docherty said that he discussed various matters with the applicant including ‘his instructions to offer to plead guilty to a charge of recklessly causing serious injury on the basis of excessive self-defence’. Mr Docherty said:
The applicant understood that to mean that he ‘overdid’ what happened. He would consider pleading guilty to intentionally causing serious injury if recklessly was rejected. He also instructed me that he did not agree with the facts as alleged at that stage.
On 15 June 2016, the prosecution withdrew the attempted murder charge. The matter was then adjourned for a directions hearing in the County Court on 23 June 2016. At the mention on 23 June, the matter was adjourned to the July 2016 Bendigo County Court circuit for trial. On the same day (23 June 2016), the prosecution stated that it would not accept a plea to the charge of recklessly causing serious injury.
On 5 July 2016, the prosecution served a summary of the prosecution opening (‘the first summary’). The first summary contained 37 numbered paragraphs. Relevantly, the first summary provided:
10.At some stage after this, in the early hours of the 11th of September 2015, the accused then attacked Ms Mulcahy with knives. Ms Mulcahy will give an account of that attack according to her memory. The prosecution does not say her memory of exactly how that attack was carried out is a perfect memory.
11.Ms Mulcahy says that the Accused started pacing around inside her house, appearing agitated and was asking if she had any Valium. She then told him to leave. She opened the front door, he walked outside, and then as they were at the threshold to the doorway, he struck her with a knife to the face and body near the front door.
12.Ms Mulcahy remembers then going from where she was near the front door to her neighbour’s house, where she asked for help.
…
17.The accused went home and woke his wife (Joanne Gilbert) up at about 5.30am. He said to her ‘I need to speak to you, I think I just killed someone’.
18.Mrs Gilbert saw what appeared to her to be blood on the Accused’s clothing. The Accused told Mrs Joanne Gilbert: that he was at Mr Blogg’s house and that ‘the crazy bitch went off her head at Leigh [Blogg] and Leigh took off. She kept going and said something about hurting her kids … and then she came at him with a knife … so I had to defend myself’
“I had kids pulling me hair and dogs biting me and in the end I had her (or got her) in a strangle hold and she was still trying to stab me”.
19.The accused then said that after Ms Mulcahy had been stabbed, he put her in a strangle hold and she passed out. That Ms Mulcahy later asked him to let her go and he replied by saying words along the lines of ‘You’ve got a big hole in your head’.[13]
[13]Footnotes omitted.
On 11 July 2016, Mr Docherty had a telephone conference with the applicant. Mr Docherty told the applicant that the prosecution would not accept a plea to recklessly causing serious injury. The applicant told Mr Docherty that he was ‘not willing to plead guilty to intentionally causing serious injury on the facts as they were alleged at that stage in the opening’.
The matter was called on in the County Court sitting in Bendigo on 11 August 2016. Mr Lavery was briefed to appear for the applicant on that day. Mr Lavery had discussions with the prosecutor (Mr David Cordy). Following those discussions and discussions between Mr Lavery and the applicant, on 12 August 2016, the matter resolved to a plea of guilty to the charge of intentionally causing serious injury. On his back-sheet, Mr Lavery recorded:
Matter resolved on basis that prosecution summary will reflect that accused raises self-defence in his statement to his wife and in his record of interview. Therefore self-defence raised. Given clear defects in victim’s account, prosecution says however incident started, accused conduct went beyond self-defence.
In evidence in this Court, Mr Lavery explained the endorsement on his back-sheet saying that there was an agreement that the prosecution summary would record the fact that the applicant raised the issue of self-defence when he spoke to his wife and in his record of interview; and that, while self-defence was thus raised, the prosecution did not accept that there was in fact any element of self-defence. Moreover, the prosecution’s position was that, in whatever circumstances the incident commenced, the conduct of the applicant went beyond legitimate self-defence — being conduct that was not ‘a reasonable response in the circumstances as [the applicant] perceive[d] them’.[14]
[14]See s 322K(2)(b) of the Crimes Act 1958.
On 12 August 2016, Mr Docherty had a conversation with Mr Lavery. Mr Docherty’s note of the conversation records the fact that the applicant had been arraigned on the charge of intentionally causing serious injury. The note continues:
Drafts agreed opening — self-defence but over, victim’s account not accurate.’
In evidence, Mr Docherty said that this note recorded his understanding that an agreed prosecution opening would be drafted, and that the words ‘self-defence but over’ were to be understood as meaning that ‘it started as self-defence’ but that the applicant had overreacted or that it had gone ‘over the top’.
The position agreed between the parties as at 12 August 2016 was that, however the incident started, the applicant’s actions in stabbing the complainant as many times as he did was excessive. Upon the plea, the courses that were open to the applicant to take (and which were the subject of discussion with him) included:
(a)plea counsel putting the applicant’s instructions that the matter started as self-defence and then escalated; or
(b)counsel calling the applicant to give evidence in accordance with those instructions.
The applicant was not, according to his former lawyers, keen to give evidence, and there was concern that the applicant giving evidence might not assist him. According to Mr Docherty, the endpoint of this conversation was that the applicant did not want to give evidence on the plea.
On 9 November 2016, the prosecution served what Mr Docherty described as ‘an updated prosecution opening’. This was the document headed ‘Summary of Prosecution Opening on the Plea Hearing’ (‘the second summary’).
The second summary contained 36 numbered paragraphs. A new introductory paragraph was inserted at the commencement of the document (paragraph 1) and two paragraphs under the heading ‘Incriminating Conduct’ were deleted (paragraphs 20 and 21). The critical paragraphs in the first summary (paragraphs 10–12 and 17–19) were not altered (now appearing as paragraphs 11–13 and 18–20 in the second summary). A reference in the first summary to Shelby telling police that she heard ‘the bad guy’ say ‘I’m going to kill your mummy now’ (paragraph 27 in the first summary) was changed in the second summary to read that Shelby told the police that ‘she heard the accused make a threat to her about hurting mummy’.[15]
[15]At question 169 of her VARE, Shelby was asked ‘Tell me about what the bad guy said’. Shelby’s answer was:
The bad guy said, ‘I’m going to kill your mummy, now’.
At about the time the second summary was served, Mr Lavery became unavailable for the plea. Mr Kelly was briefed to appear. Mr Docherty had a further video-link conference with the applicant, and Mr Kelly had a conference with the applicant prior to the day of the plea hearing.
The plea hearing
Shortly after the plea hearing commenced, the prosecutor (Mr Cordy) read aloud the second summary. In between reading paragraphs 11 and 12 of the second summary, the prosecutor interpolated that it was ‘perhaps not surprising given the nature of the attack and the injuries sustained by [the complainant]’ that the complainant’s memory of ‘exactly how the attack was carried out’ was not a perfect one.
After the prosecutor read the second summary, the second summary was tendered together with relevant photographs and the complainant’s victim impact statement. There was then the following exchange between the judge and Mr Kelly:
HER HONOUR: Mr Kelly, those facts are not the subject of any dispute I assume?
MR KELLY: No, Your Honour.
HER HONOUR: Okay.
MR KELLY: I do have — I will be putting some instructions in relation to his recollection as to the events inside the house.
HER HONOUR: Yes.
MR KELLY: But as [to] the facts as put by the Crown there’s no dispute in relation to that.
HER HONOUR: No dispute, all right.
Mr Kelly then commenced his plea on behalf of the applicant. In the course of the plea, the judge said:
What I’m perplexed about is there doesn’t appear to be any apparent motivation for this serious offending.
Mr Kelly responded:
You’ve heard the Crown opening how the complainant has her memory of what’s occurred and it’s not said that that’s a perfect memory and you’ve also heard how there seems to be, well, in his mind — my instructions are as follows …
After further exchanges between Mr Kelly and the judge, Mr Kelly then proceeded to put his instructions in the following terms:
My instructions are as follows, Your Honour, and can I say at the outset this isn't put as some sort of self-defence argument, this is simply relaying to the court Mr Gilbert's recollections as best as he can as to what occurred. In my submission it seems to be supported to some extent by the location of what's described in those photographs and by the expert evidence as described in the Crown opening.
Mr Gilbert's instructions are, as I've already put to you, about how he comes to the house. And there's the — as you've heard, there's the argument Mr Blogg leaves and he remains in the house with Ms Mulcahy and after some time there's — he says, ‘Look, I'm going to go home’. There's an argument about that between the two of them and his instructions are that at some point he's in that or near that little eating area there next to the bench and she has a knife in her hand and she comes or lunges towards him.
He then instructs that what happens is that he grabs the knife, he thinks it was in her left hand but he's not sure, they trip over and they end up on the floor. She's face-up on the floor, he's above her. There's more struggling and you've heard in the summary how there's at least — there's two knives involved, Your Honour, you've heard in the opening. He says then he grabs a knife off the table and starts stabbing her whilst this argument's going on.
I asked him, ‘Well, where were you stabbing her?’ and he said, ‘I thought it was the front’, but clearly it wasn't. It wasn't the front.
At that point, the judge interrupted Mr Kelly, saying that she could not accept this version of the facts. The judge said:
I can’t accept that that is based in fact. … That what he’s putting on the basis of the material that’s contained within the deposition, I’m not prepared to accept that version of the events, what he recollects occurred happened as being what indeed happened.
There was then further discussion between the judge and Mr Kelly, during which the following was said:
HER HONOUR: It’s still a mystery then as to what it is that’s really motivated this savage attack on this young woman.
MR KELLY: It is clearly, Your Honour, and at the outset I’ve conceded, this is clearly a savage attack. It’s a very serious matter. There’s serious injury suffered here and I do concede that from the outset, Your Honour, clearly.
After Mr Kelly concluded his submissions, the prosecutor made some submissions in reply. During those submissions, the following exchange occurred between Mr Cordy and the judge:
HER HONOUR: In terms of gravity of this offending, how do you assess? Is it the worst sort of case of this serious category of offending?
MR CORDY: It's right ‑ ‑ ‑
HER HONOUR: Or at the upper end?
MR CORDY: It's right at the upper, Your Honour.
HER HONOUR: Yes.
MR CORDY: The reasons for that are this, whatever triggered this event or the accused behaviour, whatever it was and it's a mystery to the Crown, as it seems to be to everybody.
HER HONOUR: Yes.
MR CORDY: But whatever it was, this was a vicious, sustained, cowardly attack on a woman, in front of her child.
Reasons for sentence
As we have already noted, the judge sentenced the applicant to a term of imprisonment of 10 years, with a non-parole period of seven years. In sentencing the applicant, the judge said:
This was a vicious, sustained and cowardly attack on a woman who suffered serious injuries. Your actions are simply inexplicable. I reject any suggestion of provocation on the part of the victim or that you were acting in self‑defence or in defence of another. You stabbed the victim multiple times using knives when she was in her own home in a place where she was entitled to feel safe and secure. You inflicted severe and potentially life threatening injuries and left the victim bleeding profusely in an obviously injured condition. The whole event was terrifying for the victim and must have been also terrifying for her vulnerable young son and daughter.[16]
[16]Reasons [45].
In this Court, counsel for the Crown very fairly conceded that the evidence tendered before the judge did not permit her to conclude that there had been a vicious, sustained and cowardly attack on the complainant, which was inexplicable, which was without any provocation on her part, and which was without any element of defence of himself or another on his part. It was thus conceded by the Crown that, while there was no merit in the applicant’s application for leave to appeal against conviction, the sentence imposed by the judge was vitiated by error and had to be set aside. The concession was properly made. The matters referred to were conclusions adverse to the offender which could not be reached unless proved beyond reasonable doubt.[17] The prosecution summary,[18] which raised self-defence, could not sustain those conclusions, nor could the evidence of the complainant’s daughter, upon which the judge appeared to rely, as her account did not address how the conflict began.
[17]R v Storey [1998] 1 VR 359, 369; quoted and approved in R v Olbrich (1999) 199 CLR 270, 281 [27]
[18]The contents of which, as we have noted, was agreed during the plea hearing.
The application for leave to appeal against conviction
The basis for the applicant’s application for leave to appeal against conviction was, in substance, contained in the affidavits of the applicant and his father. This evidence was said to support the proposition that the applicant’s plea of guilty was made in circumstances where he did not intend to admit that he was guilty, and that his plea of guilty was not accompanied by any genuine consciousness of guilt. Thus, in his affidavit, the applicant variously swore:
I believe that it was at that point that I thought I had no choice but to plead guilty even though I believed I acted in self-defence.
…
I remember at the time I pleaded guilty I wanted to say not guilty. I almost did. I remember pausing when the charge was read out and I was asked to say whether I was guilty or not guilty.
What made me pause was that when the charge was read out and the words ‘without lawful excuse’ were said I felt that it was wrong to be saying I was guilty when [the complainant] had come at me with a knife.
The applicant’s father’s affidavits placed some emphasis on the applicant’s personality as observed by, and known to, his father. The admissibility of much of this evidence may be doubted. The applicant’s father also sought to make much of the fact that, after the applicant pleaded guilty, but before the plea hearing, the applicant was diagnosed with ‘Autistic Spectrum Disorder’.[19] While ‘Autistic Spectrum Disorder, without accompanying intellectual impairment’ was diagnosed in a report dated 22 August 2016, it must immediately be observed that no expert evidence was tendered on the plea about how this diagnosis could have relevantly impacted upon the applicant’s understanding of legal advice given to him or his capacity to make decisions about whether he would or would not plead guilty in particular circumstances.
[19]Referred to as ‘Autism Spectrum Disorder (ASD)’ in the particulars of proposed ground 3 of the application for leave to appeal against sentence.
Mr Docherty, Mr Lavery and Mr Kelly each gave evidence of their dealings with the applicant, the advice he was given about the charges he was facing and issues relating to pleading guilty, and the difficulties the applicant faced on the issue of self-defence when one had regard to the whole of the evidence. In substance, Mr Docherty, Mr Lavery and Mr Kelly gave evidence that the applicant appeared to understand the relevant issues and to accept that he had overreacted so that, if he fought his trial, he would likely be convicted. Nothing in the evidence of Mr Docherty, Mr Lavery or Mr Kelly supported the notion that there was any basis to impugn the integrity of the applicant’s plea.
While much has been written about the circumstances in which an accused person might be permitted to withdraw a plea of guilty,[20] ultimately the question in this case is whether there would be a miscarriage of justice in permitting the applicant’s plea of guilty to stand in the circumstances of this case.[21] As was said by Redlich JA in Weston:
To impugn the integrity of the plea, whether before or after conviction, the applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt.[22]
[20]See in particular, Weston (a pseudonym) v The Queen (2015) 48 VR 413 (‘Weston’) and the authorities referred to therein.
[21]Weston (2015) 48 VR 413, 449 [128] (Whelan and Kaye JJA).
[22]Ibid 444 [109(5)].
Having seen and heard the applicant give evidence, we are not persuaded that there is any basis upon which the integrity of his plea of guilty can be impugned. The applicant has always maintained that the incident with the complainant started when she came at him with a knife. The evidence discloses that there were detailed conversations with the applicant about the reasonableness of his response. Having seen the applicant, we have no doubt that he well understood that he overreacted when he stabbed the complainant 10 times to the face and back.
In his evidence before us the applicant explained his position by saying that he had ‘used the wrong method’ when he stabbed the complainant, and that there had been ‘an element of self-defence’ involved. In our opinion this revealed an understanding of the critical issue in his case. He did not maintain that his response was reasonable. In our view he exhibited a recognition that it was not reasonable; or, perhaps more accurately, a recognition that he had had little chance of persuading a jury that the prosecution had failed to establish that it was not reasonable. That is why he decided to plead guilty. To the extent that the applicant attempted to cavil with these propositions, in answering questions in this Court, we reject the applicant’s evidence and accept the evidence of Mr Docherty, Mr Kelly and Mr Lavery about their conversations with him concerning the difficulties he faced with the self-defence issue and the reasons for pleading guilty. What the applicant said in his evidence did not undermine the integrity of his plea, in our opinion.
Additionally, it is to be remembered that the complainant was found to have six sharp force injuries to her face and four sharp force injuries to her back. She had other defensive wounds to her left thumb and right arm. The applicant, however, had no significant injuries. In the circumstances of this case, the proposition that the respondent would not have established the applicant’s lack of lawful excuse for the injuries he inflicted on the complainant is little short of fanciful.
There is no miscarriage in holding the applicant to his plea of guilty in this case. It follows that there is no substance in proposed ground 1 of the applicant’s application for leave to appeal against conviction.
In support of proposed ground 2, counsel for the applicant relied upon what Mr Kelly said on the plea hearing when Mr Kelly attempted to convey the applicant’s instructions to the judge. The applicant submitted that those instructions, as conveyed to the judge, ‘traversed the plea and were inconsistent with the plea of guilty’. We reject that submission.
In putting the applicant’s instructions to the judge, Mr Kelly specifically told the judge that he was not putting ‘some sort of self-defence argument’. Fairly read, Mr Kelly’s submissions on the plea were designed to persuade the judge that the incident had started with the applicant attempting to defend himself but that self-defence could not be made out because the applicant’s conduct was not a reasonable response to the relevant circumstances.[23]
[23]See s 322K(2)(b) of the Crimes Act 1958.
Neither the applicant’s instructions as conveyed to the judge, nor his instructions more generally, traversed the plea of guilty or were inconsistent with the plea. The plea was made on the basis that the Crown could establish beyond reasonable doubt each of the elements of the offence of intentionally causing serious injury — including negativing beyond reasonable doubt that the applicant’s conduct was a reasonable response in the circumstances as the applicant perceived them.[24] It follows that proposed ground 2 (like proposed ground 1) is not reasonably arguable.
[24]Ibid.
The sentence appeal
Having regard to the concession made by the Crown in this Court that the judge’s sentence was vitiated by error when the judge concluded affirmatively that there was no suggestion of provocation or issue of self-defence, it is not necessary to give detailed consideration to each of the applicant’s proposed grounds of appeal against sentence.
It seems to us that the problem in this case was created by the prosecution summary referring to the complainant’s version, and what the applicant later said, without saying with any specificity what the Crown’s position was as to the circumstances in which the applicant’s attack on the complainant commenced. It may have been more helpful if the prosecution summary had identified in clear terms that, while the prosecution did not accept that there was any element of provocation by the complainant, or self-defence by the applicant, in whatever circumstances the incident began, the applicant’s conduct was excessive and not a reasonable response to the circumstances as he perceived them.
The judge could then have sentenced on this basis or, if the applicant chose to conduct a contested plea hearing she could have sentenced on the basis of findings made following the calling of evidence by the parties. What was not open, on the material tendered to the judge, was the conclusion that the applicant’s attack on the complainant was entirely unprovoked. Such a conclusion was not open on the material tendered on the plea, notwithstanding the submissions made by the prosecutor in reply to the judge.
The Crown now concedes that the sentencing discretion in this case is reopened. We were told during the course of the hearing that, in the event that his application for leave to appeal against conviction is unsuccessful, the applicant now wishes to conduct a contested plea hearing. The Crown accepts that this course is open and submitted that a contested plea hearing was best conducted by the County Court where both sides could call whatever evidence they wished to call (potentially the applicant, the complainant and some of the forensic evidence) in order that a judge might make findings on the factual circumstances that remain in dispute between the parties. Counsel for the applicant also accepted the proposition that any contested plea hearing was best conducted by a judge at first instance and that the matter should be remitted to the County Court.
Section 282(1)(b) of the Criminal Procedure Act 2009 permits this Court to remit the matter to the County Court. While it has been said before that the power to remit should be exercised sparingly and only in exceptional circumstances,[25] we are persuaded that this is an appropriate case to remit for the reasons given by counsel in their submissions to us.
[25]R v Roberts [2000] VSCA 46 [18]; Strangio v The Queen [2016] VSCA 286 [34].
It remains to say something briefly about the applicant’s complaint that he was denied procedural fairness when the judge relied upon Shelby’s VARE without first giving the applicant some notice of her preliminary views about the VARE once she had viewed it, and the applicant’s complaint that the sentence imposed by the judge was manifestly excessive.
The issue of Shelby’s VARE arose when the judge asked if she could be provided with a copy of it to view later in her chambers. No objection was taken by Mr Kelly. Such submissions as Mr Kelly wished to make about the VARE should have been made during the course of the plea hearing. While one might question whether Shelby’s VARE threw any light on the issue of whether the applicant was provoked in any way by the complainant, there was no failure to accord procedural fairness in the judge viewing the VARE and drawing what conclusions that were open from it.
As to manifest excess, we would observe that if the judge had been entitled to conclude on the evidence before her that this was a vicious, sustained and cowardly attack without any suggestion of provocation or that the applicant was acting in self-defence, then a sentence of 10 years with a non-parole period of seven years was (notwithstanding the applicant’s plea of guilty, lack of prior convictions and other mitigatory factors) well-open. A vicious, sustained and cowardly attack on a woman in her own home that is unprovoked may well result in a term of imprisonment of the order of that imposed by the judge — even for an applicant who pleads guilty and has no prior convictions.
Conclusion
The application for leave to appeal against conviction will be refused. The application for leave to appeal against sentence will be granted and the appeal allowed. The sentence imposed in the County Court on 9 December 2016 will be set aside and the matter will be remitted for rehearing to the County Court by a different judge.[26]
[26]See s 282(3)(a) of the Criminal Procedure Act 2009.
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