Buckmaster v The King - [2022] SASCA 101

Supreme Court of South Australia
(Court of Appeal: Criminal)
BUCKMASTER v THE KING
[2022] SASCA 101
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
29 September 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS
On 7 December 2021 the appellant pleaded guilty to two counts of aggravated threatening to cause harm, contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). The offending was aggravated because the threats were made against the Commissioner of Police and a sitting magistrate. On 15 February 2022, the appellant was sentenced by a judge of the District Court, sitting as a magistrate, to two years and two months’ imprisonment, with a non-parole period of nine months fixed.
The appellant appeals against his conviction on the ground that he pleaded guilty under duress from his legal advisors. The appellant seeks permission to appeal against his sentence on the grounds that the sentencing judge erred in imposing a custodial sentence and that his sentence is manifestly excessive.
Conviction Appeal
Held (the Court) dismissing the conviction appeal:
1.The appellant was not subjected to any illegitimate pressure, let alone duress, before or at the time he entered his pleas of guilty to the charges the subject of the appeal.
2.There is no basis to find that the entry of guilty pleas was made by the appellant other than in the exercise of a free choice made with the benefit of competent legal advice.
3.There has been no miscarriage of justice.
Sentence Appeal
Held (the Court) refusing permission to appeal against sentence:
1.The judge did not err in imposing a custodial sentence.
2.It is not reasonably arguable that the sentence was excessive or unjust.

Criminal Law Consolidation Act 1935 (SA) s 19(2); Sentencing Act 2017 (SA) s 96; Joint Criminal Rules 2022 (SA) r 192.2; Magistrates Act 1983 (SA) s 22; Magistrates Court Act 1991 (SA) s 42, referred to.
Attorney-General v Thamm (1991) 57 SASR 83; Le Cornu v Thomas (2019) 134 SASR 421; MacFarlane v The Queen [2022] SASCA 46; Meissner v The Queen (1995) 184 CLR 132; Police and Department for Correctional Services v Mahon [2022] SASCA 76; R v Collins [2018] SASCFC 97; R v Pugh (2005) 158 A Crim R 302, considered.

BUCKMASTER v THE KING
[2022] SASCA 101
Court of Appeal – Criminal: Livesey P and David JA
THE COURT:
Introduction

This is an appeal against conviction and an application for permission to appeal against sentence, both of which were dealt with in the Magistrates Court.
The conviction appeal is against two counts of aggravated threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty was imprisonment for 8 years.[1]
[1] Although the sentencing judge referred to 7 years, that error is of no moment.
The offending was aggravated because the threats were made against the Commissioner of Police and a sitting magistrate.
By an initial handwritten Notice of Appeal, and then an amended Notice of Appeal dated 24 August 2022, the appellant seeks orders setting aside the convictions and sentence on the ground that he pleaded guilty under duress from his legal advisors. On the sentence appeal, by a further handwritten Notice of Appeal dated 26 August 2022, the appellant maintains in various ways that the sentencing judge erred in imposing a custodial sentence and that his sentence is manifestly excessive.
For the reasons that follow, the appeal against conviction should be dismissed and permission to appeal against sentence should be refused.
The guilty pleas and sentence
The guilty pleas which led to convictions being recorded were entered at a committal hearing on 7 December 2021 before Magistrate Dixon. At that stage, the appellant was represented by Mr Adam Richards of Old Port Chambers.
The appellant had been taken into custody on 9 June 2021, denied bail and not sentenced until 15 February 2022. The appellant was sentenced by Judge Soulio, sitting as a magistrate pursuant to s 22 of the Magistrates Act 1983 (SA) because one of the offences was committed against a sitting magistrate.
But for the appellant’s guilty pleas, the sentencing judge would have imposed a sentence of imprisonment for two years and six months. The appellant was sentenced to imprisonment for two years and two months, with a non-parole period of nine months.
The appellant became eligible to apply for parole on 9 March 2022. Because he had been in custody since 9 June 2021, he became eligible shortly after he was sentenced in February 2022. The appellant has since made an application for parole. His application is still being evaluated. As this appeal is likely to complicate the application for parole, it has been brought on urgently.
An order was made at a callover referring the appeal to the Court of Appeal pursuant to r 192.2(1)(b) of the Joint Criminal Rules 2022 (SA).[2]
[2] Pursuant to s 42(2)(b) of the Magistrates Court Act 1991 (SA) the appellant’s conviction appeal lies to a single Judge of the Supreme Court as of right. The appellant’s sentence appeal however, lies to the Court of Appeal with permission of the Court of Appeal pursuant to s 42(2)(ab) of the Magistrates Court Act 1991 (SA).
There have been a number of adjournments to facilitate the provision of documents to the appellant, who is not represented. The Court has been assisted by Mr Kirby of the Legal Services Commission of South Australia who prepared the appellant’s affidavit and provided various documents to the appellant. Not all the documents the appellant sought were relevant or available.
The circumstances of the offending
The facts which follow were not in dispute before the sentencing judge.
In an earlier, unrelated driving prosecution the appellant was alleged to have been driving a prime mover in excess of the maximum prescribed work hours and, in addition, it was alleged that he had made false statements about having an exemption concerning those work hours.
In connection with those proceedings, the appellant underwent a mental health assessment at Howard House at Oakden on 8 June 2021. Two clinicians conducted that assessment. They described the appellant as fixated on the driving prosecution. During the course of that assessment, the appellant said words to the effect that he would attack the police and that it would be Commissioner Grant Stevens, not the minions below him. In addition, the appellant said that Mr Stevens would remember him every time he looked in the mirror. This alluded to the disfigurement that the appellant intended to cause to Mr Stevens’ face. This conduct comprises the first count.
During the same examination, the appellant told the clinicians that he was next due to appear in the Magistrates Court on 10 June 2021. He said that should that hearing not result in a favourable outcome, he would jump the dock and pummel the magistrate if the magistrate dared to take away the appellant’s licence. This conduct comprises the second count.
An unusual feature of the offending is that the appellant acknowledged at the time of the assessment that his statements would likely result in his imprisonment and that this would only further his “cause”. That “cause” was said to be the appellant’s ongoing dispute with the National Heavy Vehicle Regulator. During the assessment the appellant said that his cause was more important than his marriage and family relationships and that he was resigned to continuing his marriage from prison. The appellant said that he had had a good life and that he did not care if he was imprisoned because it would be worth it.
The clinicians formed the opinion that the appellant posed a genuine risk and so a report was made to police. The appellant was arrested and denied bail.
The circumstances of the offender
The sentencing judge recorded that at the time of sentence the appellant was 63 years of age and that he had been married for 40 years and had three children, as well as four grandchildren.
After service in the Navy, which involved deployment in the Pacific for four years, the appellant left the Navy and married at the age of 23. After an apprenticeship driving trucks, the appellant has remained in the transport industry for around 40 years.
The appellant’s antecedent report demonstrates that his prior offending largely concerned offences relating to the overloading of transport vehicles, logbook offences, offences of exceeding hours or driving while fatigued.
However, the sentencing judge was, correctly, concerned that there were relevant offences committed in 2012 being a threat to kill, threatening to damage property and using a carriage service to menace, which were dealt with by way of conviction and fine. Briefly, on 20 April 2012 the appellant called Channel 10 and said that he was going to kill two police officers and that he was a truck driver who had just lost his licence for logbook offences. The appellant said that because he was being treated like a criminal, he would act like a criminal and he would run his B-double truck into a service station at Nhill in Victoria, causing a fireball which would take out the Caltex station and other drivers.
The appellant then called the Magistrates Court and spoke to the executive assistant to the Chief Magistrate and made similar threats, stating that his actions would be “on the head” of the Chief Magistrate.
The sentencing judge accepted that since the subject offending the appellant was embarrassed, remorseful and apologetic. The appellant submitted that he never intended to carry out his threats and he accepted that his comments were extremely ill-advised. He wished to be reunited with his family. The sentencing judge accepted the apology which was offered through the appellant’s counsel.
The sentencing judge had regard to a number of relevant authorities concerning threats made to judicial officers and held that the observations made in those cases applied equally to the threats made to the Commissioner of Police.[3]
[3] Attorney-General v Thamm (1991) 57 SASR 83, 86 (Legoe and Millhouse JJ, Zelling AJA); R v Collins [2018] SASCFC 97, [41] (Lovell and Doyle JJ).
Setting aside a plea of guilty
It is well-recognised that a defendant may be permitted to withdraw a plea of guilty and have the conviction set aside where the circumstances in which the plea was entered demonstrate that there has been a miscarriage of justice, for example, because the plea was induced by intimidation or by improper inducement.[4]
[4] Meissner v The Queen (1995) 184 CLR 132, 157 (Dawson J); R v Pugh (2005) 158 A Crim R 302, [15], [35]-[41] (Doyle CJ); MacFarlane v The Queen [2022] SASCA 46, [66] (Livesey P). As the appeal is made pursuant to s 42 of the Magistrates Court Act 1991 (SA), it is necessary to bear in mind the approach taken in cases such as Le Cornu v Thomas (2019) 134 SASR 421, [30] (Peek J, with whom Bampton and Lovell JJ agreed); see also Police and Department for Correctional Services v Mahon [2022] SASCA 76, [81]-[84] (Livesey P, Lovell and Doyle JJ).
Accordingly, it is necessary to determine whether the guilty pleas which were entered on 7 December 2021 were entered in the exercise of a free choice made by the appellant with the benefit of competent legal advice. As has been recognised, the Court may act on a plea of guilty in those circumstances and there is no miscarriage of justice even if the person entering the plea is not in truth guilty of the offence.[5]
[5] Meissner v The Queen (1995) 184 CLR 132, 141 (Brennan, Toohey and McHugh JJ).
The guilty plea in the Magistrates Court
The Court has received affidavit evidence from the appellant and from his former legal advisors. Briefly, the effect of that evidence is as follows:
1.The appellant’s affidavit made on 2 September 2022 denies the offending during the examination with the two clinicians on 8 June 2021. He says, however, that he received advice from Mr Timothy Dibden, who had been allocated the matter by the Legal Services Commission of South Australia, that he was guilty of the offending.[6] That was despite telling Mr Dibden that he did not ever threaten the Commissioner of Police or the magistrate.[7] The appellant says that he refused to plead guilty because he told Mr Dibden that he was not guilty.[8] Otherwise, the appellant refers to a number of matters which it is not necessary to address, including a series of unsuccessful bail applications. The appellant says that he terminated the services of Mr Dibden and was thereafter represented by Mr Richards.
[6]     Affidavit of Graeme Buckmaster dated 2 September 2022, [12].
[7]     Affidavit of Graeme Buckmaster dated 2 September 2022, [23].
[8]     Affidavit of Graeme Buckmaster dated 2 September 2022, [28].
2.The appellant says that he was advised by Mr Richards that he would be acquitted and that he could obtain bail.[9] The appellant says that Mr Richards advised him that if he took a “deal” which was being discussed between the prosecution and the defence he could be home with his family before Christmas.[10] The appellant says that he instructed Mr Richards to accept the deal.[11] The plea was entered before Magistrate Dixon on 7 December 2021.[12] It is not suggested that, at or just before that hearing, the appellant was subjected to any pressure by his legal advisors. Nonetheless, at paragraph 54 the appellant says:
My decision to plead guilty was based on the pressure and advice from both Tim Dibden and Adam Richards that followed many months of poor legal representation. I had been remanded in custody for a long time and had been continuously denied the chance to investigate or put forward evidence in my defence. I was of the opinion that accepting this deal was the only way that I would be released from prison.
3.The appellant maintains that he is not guilty of the offending and that he only pleaded guilty because he was “led to believe” that he would be released from custody by accepting the deal that was offered. This essentially was the position he emphasised in his oral evidence. To some extent that was supported by the evidence of his wife and son.
4.The affidavit from Mr Dibden made on 5 September 2022 takes issue with a number of the allegations made by the appellant. It is not necessary to note all of the conflicts in the evidence. It is sufficient to observe that Mr Dibden says he was consistently instructed by the appellant that he did not deny making the comments the subject of the charges, but objected to what he had said to the clinicians being used as evidence “given his view that the discussion was confidential and subject to medical privilege”.[13] In addition, the appellant denied intending to cause the victims to fear that the threats would, or would likely be, carried out.
5.The appellant does not address various matters deposed to by Mr Dibden including the problems posed by a series of prison telephone calls he made to family members requesting the location of the clinicians and a newspaper reporter.[14] Those calls were potentially relevant to his intention at the time the threats were made.
6.Mr Dibden accepts that he advised the appellant that, were he to plead not guilty and proceed to a trial, there could be a lengthy delay, a longer delay than if there was a plea of guilty. Mr Dibden explicitly denies putting the appellant under any duress in order to resolve the matter.[15]
7.The affidavit from Mr Richards sworn 5 September 2022 similarly takes issue with a number of the allegations made by the appellant. For example, he denies having promised either an acquittal or a guarantee of bail because such promises are regarded by him as “counterproductive if not cruel”. Mr Richards denies having advised that he could secure an acquittal and he says he warned the appellant that bail was problematic. He says that he advised the appellant that he may well spend more time in custody on a defended case than on a contrite plea.[16] Mr Richards says that he took instructions from Mr Buckmaster to enter a plea on or about 1 December 2021. Consistently with the appellant’s affidavit, the decision by the magistrate to refer the matter to a District Court judge sitting as a magistrate, which delayed the resolution of the matter, came as a surprise.[17]
8.Mr Richards makes the important point that, when the appellant was sentenced on 15 February 2022, the sentence which was imposed permitted release on parole a short time thereafter. Mr Richards cannot explain why the appellant remains in custody given that the non-parole period was only marginally longer than the time spent in custody.[18]
[9] Affidavit of Graeme Buckmaster dated 2 September 2022, [37], [42].
[10] Affidavit of Graeme Buckmaster dated 2 September 2022, [43].
[11] Affidavit of Graeme Buckmaster dated 2 September 2022, [46].
[12] Affidavit of Graeme Buckmaster dated 2 September 2022, [47].
[13] Affidavit of Timothy Dibden dated 5 September 2022, [5].
[14] Affidavit of Timothy Dibden dated 5 September 2022, [6].
[15] Affidavit of Timothy Dibden dated 5 September 2022, [25].
[16] Affidavit of James Adam Richards dated 5 September 2022, [5].
[17] Affidavit of James Adam Richards dated 5 September 2022, [8].
[18] Affidavit of James Adam Richards dated 5 September 2022, [10].
The appellant was given an opportunity to cross-examine his former legal advisors.
In the case of Mr Richards, the cross-examination showed that between the hearings on 11 and 15 February 2022, there was a brief conversation in which Mr Richards likely discussed the possible withdrawal of the Form 9A signed on 3 December 2021 by the appellant and Mr Richards.[19]
[19] See exhibits R3 and R4.
Whilst Mr Richards believes he advised the appellant not to withdraw his plea, the appellant says he gave no instructions to withdraw his plea because there was no time in which to do so.
In the case of Mr Dibden, he clarified that he put a proposed resolution without instructions to see if the matter could be resolved quickly. His instructions were terminated before he obtained instructions from the appellant on whether the appellant would plead guilty.
We have carefully considered the evidence of the appellant and of his former legal advisors. We make the following findings.
Approaching the evidence generally and insofar as the evidence of the appellant conflicts with the evidence of his legal advisors, we prefer the evidence of his legal advisors. The appellant has a great many complaints about his legal advisors. He is very angry about the representation that he received. He says that that representation was inadequate and that a number of matters which should have been addressed were not addressed.
It is not necessary to address these many criticisms in any detail.
The appellant’s former legal advisors have, to a significant extent, provided their evidence with the benefit of their contemporaneous records. It does not appear that the appellant had the benefit of notes or emails with which to assist his memory. To some extent that is because some of his records have, through no fault of his, been destroyed.
The evidence of the appellant's former legal advisors is generally detailed logical and clear. We find that it is both credible and reliable. In any event, their accounts better accord with the sequence of events. The appellant’s wife and son were both credible and clear, but they had difficulty remembering events. We reject their evidence that a deal was made by the prosecution at the time that Mr Dibden was acting. That evidence is contradicted by Mr Dibden’s evidence and file. Their misunderstanding, nonetheless, is understandable.

On the key issues in contest we find as follows:
1.Although the appellant says that he told his legal advisors that he was not guilty, that is contrary to the fact that on 1 December 2021 Mr Richards was instructed to enter pleas of guilty and the Form 9A was signed by the appellant on 3 December 2021.
2.Thought the appellant considered withdrawing his plea, ultimately, he determined not to do so. We reject the appellant’s evidence to the contrary. The better view of the evidence is that the appellant admitted making the statements but believed that those statements could not be used against him and that his threats ought not be believed. On the whole of the evidence put before this Court, the appellant’s instructions to Mr Richards to plead guilty were given on 1 December 2021 and confirmed on 2 December 2021 and those instructions were not withdrawn between 11 and 15 February 2022. Those instructions were consistent with the legal advice received that, despite any possible defence available to him, the appellant would be better off pleading guilty.[20]
3.The appellant’s affidavit evidence and his evidence in this Court falls a long way short of demonstrating that he was subjected to any pressure from his legal advisors. Rather, as one might expect, the appellant was appropriately advised that his matter might be dealt with more expeditiously in the event that he pleaded guilty than compared with proceeding to a trial. We reject the appellant’s evidence that he was subjected to any pressure by his legal advisors. Though the applicant considered withdrawing his plea between 11 and 15 February, by the time of the hearing on 15 February 2022, the appellant was prepared to proceed on his plea of guilty. He was present at the time sentence was delivered and he made no objection either to Mr Richards’ submissions, or to the sentencing judge proceeding to sentence on 15 February 2022.
4.We are satisfied on the whole of the evidence, and it was really common ground, that the appellant was prepared to plead guilty in the hope that he would be sentenced expeditiously on a lenient basis, and effectively on the basis that he would not need to spend significantly more time in gaol.
5.Indeed, Mr Richards cannot explain why, notwithstanding the expiry of the non-parole period, the appellant remains in custody. Whilst that circumstance is undoubtedly of considerable concern to the appellant, it cannot be used to retrospectively impeach his decision to plead guilty and to seek what, at the time, must have appeared to be both an acceptable and appropriate outcome that broadly accorded with the advice the appellant had received from Mr Richards.
[20] Mr Buckmaster deposes that Mr Dibden advised him that a defence pursuant to s 269 of the Criminal Law Consolidation Act 1935 (SA) may have been available but he refused as he does “not have any mental health issues”: affidavit of Graeme Buckmaster dated 2 September 2022, [25]-[26].
We emphasise that no attempt has been made to challenge the evidence of the clinicians to whom the threats were made. We are satisfied that those threats were made and that they were made with the requisite state of mind. That conclusion is reinforced by the terms in which submissions in mitigation were made to the sentencing judge in the appellant’s presence. Those submissions represented both admissions and explanations for the appellant’s offending. No attempt has been made to demonstrate that those submissions were not made on the appellant’s instructions.
In summary, we are satisfied that the appellant was not subjected to any illegitimate pressure, let alone duress, from his legal advisors before or at the time he entered his pleas of guilty to the charges the subject of this appeal.
There is no basis to find that the entry of guilty pleas was made by the appellant other than in the exercise of a free choice made with the benefit of competent legal advice. Allowing these pleas to stand involves no miscarriage of justice.
In these circumstances we would dismiss the appeal against conviction.
The sentence appeal: custodial sentence and manifest excess
The appellant contends that the sentencing judge erred in ordering that his sentence be served in custody. He submits that, where there exists “good reason” to do so, the court may suspend a sentence of imprisonment on a defendant entering into a bond pursuant to s 96(1) of the Sentencing Act 2017 (SA) (the Sentencing Act). The decision to suspend a sentence is a discretionary one. Usually, a decision that a sentence should not be suspended will only indicate error if the Court is persuaded that it was not open to the sentencing judge to decline to suspend the sentence.[21]
[21] Teasdale v Police [2022] SASC 64, [73] (Blue J).
During sentencing submissions, the appellant did not submit to the sentencing judge that his sentence should be suspended. In imposing an immediate custodial sentence, the sentencing judge was, correctly, concerned that the appellant had previously been convicted of similar, serious offending in 2012. His Honour found that leniency could not be extended to the appellant. The appellant failed to demonstrate to the sentencing judge, or to this Court today, that there exists “good reason” to suspend his sentence. It cannot be said that the imposition of a custodial sentence was outside the permissible range of sentences available to the sentencing judge.
It is not otherwise suggested that the sentencing judge made any specific error in connection with the exercise of his sentencing discretion.
Essentially, it is said that the sentencing judge imposed a sentence which was too long. That contention must be rejected.
It is important that judicial officers and police officers be able to go about their duties without fear of retribution or violence. Both general deterrence and community protection are important sentencing considerations for offending of this kind. Offences such as these must be marked out and punished because they undermine the operation of the rule of law and the administration of justice in our community.
In circumstances where, around a decade before, the appellant had been treated leniently for somewhat similar conduct, personal deterrence was also a relevant sentencing consideration in this case.
In our view it cannot be said that it is reasonably arguable that the starting point of two years and six months was excessive or unjust. After reduction for the guilty pleas, the judge fixed what has rightly been described as a merciful non-parole period of nine months, recognising that it would be of benefit to the community if the appellant was afforded an extended period of time on parole under strict supervision.
Conclusion
In these circumstances, the appeal against conviction must be dismissed and permission to appeal against sentence must be refused.