De Bono v Southam
[2018] WASCA 218
•7 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DE BONO -v- SOUTHAM [2018] WASCA 218
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 23 NOVEMBER 2018
DELIVERED : 7 DECEMBER 2018
FILE NO/S: CACR 177 of 2018
BETWEEN: JAMIE CHARLES DE BONO
Appellant
AND
VICTORIA SOUTHAM
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: DERRICK J
File Number : SJA 1042 OF 2018
Catchwords:
Criminal law - Appellant pleaded guilty to six offences of breaching a violence restraining order - Appeal against conviction - Whether any miscarriage of justice - Turns on own facts
Legislation:
Restraining Orders Act 1997 (WA), s 61
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
De Bono v Southam [2018] WASC 266
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
JUDGMENT OF THE COURT:
The appellant pleaded guilty to six counts of breaching a violence restraining order (VRO). He was sentenced to 3 months' imprisonment cumulative on the term of imprisonment he was serving at the time of his conviction. He appealed to a judge of the General Division against his conviction, and against the sentence imposed on him. The appeal was dismissed.[1]
[1] De Bono v Southam [2018] WASC 266 (primary reasons).
He now seeks leave to appeal against the dismissal of his appeal against conviction. For the reasons that follow, there is no merit in the proposed grounds of appeal. Consequently, leave to appeal must be refused and the appeal dismissed.
The facts of the offences
On 30 October 2016 the appellant was served with the VRO. The protected person under the VRO was the appellant's former partner, ANM.
One of the conditions of the VRO was that the appellant must not:
Communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text messages or any other electronic means.
During the period 14 January 2017 to 16 June 2017 the appellant was in custody, on remand awaiting sentencing for an offence of aggravated assault occasioning bodily harm which he had committed against ANM. While he was in custody, ANM made contact with him under a false name. The appellant realised, if not immediately, then very soon after the contact had been made, that the writer was in fact ANM.
After ANM's initial contact with the appellant, during the period 14 January 2017 to 16 June 2017 the appellant sent six letters to ANM. Each of the six letters was addressed to the false name and was sent to ANM's brother's address. ANM's brother lived in the same street as ANM.
In each of the six letters the appellant, in essence, expressed his love for ANM, his desire to reconnect with their daughter and his desire to reunite with both ANM and their daughter so as to recreate the family unit. The letters were, as the magistrate described them, 'protestations of love'.[2]
[2] ts 10, 12, 23 March 2018.
The background to the appellant entering his guilty pleas
The primary judge set out the background to the appellant entering his guilty pleas, as follows.
When the appellant appeared before the magistrate for the first time on 26 February 2018 he informed her that he was 'not too sure' if he was guilty or not guilty.[3] Her Honour informed the appellant that 'perhaps it would be better for you to get some legal advice on these charges and, if it's appropriate, you can deal with them on the next occasion'.[4] A little later the following exchange occurred between the magistrate and the appellant:[5]
[3] ts 34, 26 February 2018.
[4] ts 35, 26 February 2018.
[5] ts 36 ‑ 37, 26 February 2018.
HER HONOUR: We're not wasting any time but listen carefully; just listen for a start.
ACCUSED: Yes.
HER HONOUR: So between - this is - what I've got before me is six breaches of a violence restraining order where it's alleged between ‑ ‑ ‑
ACCUSED: Yes.
HER HONOUR: ‑ ‑ ‑ 14 January and 16 June last year you breached the order by communicating with the protected person. Do you at least understand those charges?
ACCUSED: Yes, I'm - I'm - I'm guilty of those, your Honour.
HER HONOUR: Right.
ACCUSED: But in respect for that, like, she has rang up the prison and because I've only got a 15 month old little girl ‑ ‑ ‑
HER HONOUR: Yes.
ACCUSED: ‑ ‑ ‑ I didn't actually know it was her at first until I actually got through. So that's ‑ ‑ ‑
HER HONOUR: Well, don't you think it would be better, Mr De Bono, if I grant you two weeks to get legal advice and you speak with the duty lawyer when they come out to Hakea or, alternatively, you put your name on the duty lawyer list and they can phone you and, if necessary, we can deal with them on the next occasion.
ACCUSED: Can I go up before you, your Honour.
HER HONOUR: Let me see what my availability is. It's not that you can't come before me, Mr De Bono, but the trouble is that I'm just not sitting in a convenient court for some period. I've got about - 6 March, so next Tuesday after the long weekend. Let me suggest this to you: put your name on the duty lawyer list for 6 March, get some advice on the phone and if we can deal with them on that day, I will deal with them on that day.
ACCUSED: Can I just say one thing before I go?
HER HONOUR: Yes.
ACCUSED: Thank you, your Honour. What's it called, the reason, like, I would like to get these dealt with as soon as possible - because if I'm not guilty, I could be not guilty due to my circumstances - it's just because I've been in custody for - for 14 months now and these have all just been brought up so if I end up taking these - having to go to trial, as you know, the courts are backed - are backed up and it just puts me in another schedule 2 position so ‑ ‑ ‑
HER HONOUR: Yes, I understand.
ACCUSED: So ‑ ‑ ‑
HER HONOUR: I understand your - I understand the point you're making.
ACCUSED: Yes.
HER HONOUR: And - but my suggestion is you put your name on the duty lawyer list, speak with the duty lawyer on 6 March and if we can deal with them on Tuesday, I would be very happy to deal with them on Tuesday.
ACCUSED: Right. So they may get chucked out, they may not.
HER HONOUR: They won't get chucked out because the police - that's a matter for the police to make that application. I don't - I don't unilaterally decide to chuck things out. (emphasis added)
The appellant next appeared before the magistrate on 6 March 2018. By the time of this hearing the appellant had provided the magistrate with a 10 page letter.
At the beginning of the hearing the magistrate had a discussion with the appellant about a bail application which he had pending in the Supreme Court.[6] The following exchange then occurred between the magistrate and the appellant:[7]
[6] ts 2 - 4, 6 March 2018.
[7] ts 4 - 5, 6 March 2018.
HER HONOUR: All right. Well, Mr De Bono, your bail application ‑ if you're making a bail application today, I have to say that you're - my sense of things is that you're going to get bail. That's just my sense of things. If you're wanting to plead not guilty, I will take your plea and I will list a trial date for you. If you're wanting to plead guilty, then we will see where we're at.
But if all you're doing is going to tell me that I should grant you bail on these matters, I'm - in the circumstances, I'm not entirely convinced, particularly where it sounds to me like you come within schedule 2 of the Bail Act that that's going to be the most prudent course of action for you.
ACCUSED: Well, your Honour, like, because I am - I am - I do accept that I am guilty for writing some letters back. It's just - it's just due to the circumstances around - as, like, your Honour can probably see by the letter that I've written. Like, so it's just due to the circumstances. I'm not ‑ ‑ ‑
HER HONOUR: Well, even if you wrote back, if that - if someone wrote to you and wrote back - and you wrote back, consent is not a defence. So, therefore, you have breached the order by writing back. So if that's what I'm going to hear ‑ ‑ ‑
ACCUSED: Okay.
HER HONOUR: ‑ ‑ ‑ then I'm afraid you're going to be out of luck because the fact that somebody wrote to you is not an invitation not you writing back and they're not - therefore, not breaching the restraining order. It does not work that way.
ACCUSED: Okay. I just ‑ ‑ ‑
HER HONOUR: It might be taken into account for the purposes of sentencing, but it won't act as a defence to the breach.
ACCUSED: That would - that makes a lot more sense then, your Honour. Like, if that's the case ‑ ‑ ‑
HER HONOUR: I suspect you've been told that.
ACCUSED: No. Well, like, I - no, I didn't get told that. If that's the case, your Honour, yes, I will - I will accept a guilty plea. (emphasis added)
Following the above exchange the prosecutor provided to the magistrate a brief outline of the facts of the offences.[8] Her Honour then had a brief discussion with the appellant in relation to the facts during which the appellant in effect accepted the facts as presented by the prosecutor.[9] After this brief discussion the following exchange occurred between the magistrate and the appellant:[10]
[8] ts 5 - 6, 6 March 2018.
[9] ts 6, 6 March 2018.
[10] ts 6 - 9, 6 March 2018.
HER HONOUR: All right. So what I'm trying to establish is did you breach the violence restraining order, and I think the simple answer to that is yes, albeit you did it in a somewhat tortured fashion. Now what are you - what is it that you're wanting to do with these charges, Mr De Bono?
ACCUSED: Well, if - like, if the laws, like, states that I am guilty of a - because I did write those letters back. But in short, like (indistinct) by saying that, in my defence, the VRO was dropped - was thrown out of court on the 1st of this month. So I've beaten that due to the circumstances due to that, like, she has invited me and she has - she has actually told the courts that she rang under a false name and stuff like that and using my - well, at that stage, my newborn daughter against me because of my past. Like, the kids have changed my life dramatically. Unfortunately I have mucked up down the track.
HER HONOUR: All right. So I'm going to stop you. Because, Mr De Bono, I don't mean to be mean, but I am taking an awful lot of time on this and I have got other people I need to deal with.
ACCUSED: Sorry.
HER HONOUR: So are you dealing with - are you entering pleas of guilty? Because if you are I'm going to ask for the prosecution to give me an indication - I'm not going to sentence you today. I will sentence you in a restraining order court, but I want the prosecution to put before me some information about the content of the letters.
ACCUSED: So will this get all dealt with today?
HER HONOUR: No, Mr De Bono.
ACCUSED: No.
HER HONOUR: The answer to that is no.
ACCUSED: Okay.
HER HONOUR: Because I need to have some more information so that I can sensibly sentence you on what the content of those letters were. And, simply put - don't take this the wrong way, but I'm just not going to accept wholly your word on things.
ACCUSED: Okay. That's fair enough, yes.
HER HONOUR: All right. So are you - do you wish to plead guilty to the charges? Do you wish to plead not guilty to the charges? Or do you wish to put them off?
ACCUSED: I will plead guilty then, your Honour.
HER HONOUR: All right. And then you've got some other material that I want to have a look at that you've sent to me - not to me personally, but to the court. And I will sentence you in a restraining order court and I will ask the prosecution to put before me some information about the content of those letters, because that may - and the circumstances surrounding it. Because that will be fairly instructive, in my view, about how I deal with this matter.
ACCUSED: That seems reasonable.
HER HONOUR: All right. Let me read the charges to you now. Between 14 January 2017 and 16 June 2017 at (indistinct) - these are all identical - it's alleged that you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: Again, between those same dates, it's alleged that you breached - you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: Between those same dates again it's alleged that you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: Between the same dates again it's alleged that you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: Again between those same dates it's alleged that you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: And again between those same dates it's alleged you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty. (emphasis added)
Sentencing on 27 March 2018
The matter was then adjourned to 27 March 2018.
On 27 March 2018, the appellant put a plea in mitigation on his behalf. In the course of the plea, he told the magistrate that the complainant had deliberately written letters to him under a false name, knowing that he would write back to her. Nonetheless, the appellant acknowledged that he was technically guilty of the offences.[11] He also informed the magistrate that the VRO had subsequently been cancelled.[12]
[11] ts 3, 8, 27 March 2018.
[12] ts 3, 9, 23 March 2018.
The magistrate sentenced the appellant to 3 months' imprisonment on each charge, to be served concurrently with each other and cumulatively on the term of imprisonment already being served by the appellant.[13]
[13] ts 13, 23 March 2018.
The appeal to the primary judge
The primary judge summarised the appellant's grounds of appeal against conviction as involving three propositions:[14]
[14] Primary reasons [13].
1.The appellant's guilty pleas were entered in circumstances that give rise to a miscarriage of justice because:
(1)at the time that he entered his pleas he was not sure if he was guilty or not guilty; and
(2)he felt pressured to enter his pleas because he believed that if he did not the existence of the unresolved charges of breaching the VRO would mean that he fell within the terms of cl 3A of sch 1 to the Bail Act 1982 (WA) which would in turn impact on the likelihood of success of an application for home detention bail that he was in the process of making in the Supreme Court in respect of indictable charges that had been laid against him (ground 1).
2.The appellant was induced to engage in the conduct the subject of the offences by the protected person under the terms of the VRO (ground 2); and
3.The VRO was cancelled after the appellant had been dealt with for the offences (ground 3).
The primary judge concluded that none of these grounds of appeal had reasonable prospects of success.[15] As will be seen, we agree with his Honour's conclusion, and with the primary judge's reasons for those conclusions.
[15] Primary reasons [32].
Appeals against convictions after a plea of guilty: general principles
The following well‑established principles concerning an appeal against conviction entered after a plea of guilty were recently stated by this court in Lawson v The State of Western Australia [No 2]:[16]
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence [Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141].
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner, a person may plead guilty for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after a plea of not guilty [Meissner (157).] The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred [Meissner (157)].
It has often been observed that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. … While the categories of miscarriage of justice are not closed, the cases reveal that there are three well‑recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like [Vella v The State of Western Australia [2006] WASCA 129 [26]; Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [154]].
[16] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] - [19].
It is clear from these principles that, even if the appellant were to establish that, in fact, he was not guilty of the offence, that, in itself, would be insufficient to demonstrate a miscarriage of justice arising from his conviction. In any event, as we will explain, the appellant has fallen well short of demonstrating that he was not guilty of the offences to which he pleaded guilty. To the contrary, nothing in the appellant's submissions gives any reason to doubt his guilt.
The circumstances in which the appellant entered his pleas of guilty did not give rise to a miscarriage of justice
The primary judge concluded that no miscarriage of justice arose from the circumstances in which the appellant pleaded guilty to the charges.[17] Although that conclusion does not appear to be challenged by the appellant's grounds of appeal, for completeness we would record our agreement with the following reasons, given by his Honour, for that conclusion:[18]
First, although the appellant may initially have been unsure about whether he was guilty of the offences, this was clearly not the position by the time he entered his pleas. To the contrary, it is clear from the exchanges that occurred between the magistrate and the appellant that the appellant understood the nature of the charges. Indeed, the appellant confirmed his understanding at the time that each charge was read to him and immediately before he entered his guilty plea to the charge. There is simply no basis for concluding that the appellant did not intend to admit his guilt.
Second, the facts of the offences, which were in effect admitted by the appellant during his second appearance before the magistrate, clearly provided a proper basis for the appellant to plead guilty to, and be convicted of, the offences. This is not a case in which the appellant could not in law have been guilty of the offences.
Third, there is no basis for concluding that the guilty pleas were obtained by improper inducement, fraud, pressure or intimidation. The fact that one of the appellant's reasons for entering his guilty pleas might have been a desire on his part to resolve the charges so that he was not caught by the terms of cl 3A of sch 1 to the Bail Act does not provide a basis for finding that he was improperly pressured or induced to plead guilty. There is simply nothing in the material before me to provide a basis for concluding that the appellant was in any way pressured or induced to enter his pleas.
Fourth, the material before me does not disclose any other ground or basis for concluding that to allow the appellant's guilty pleas to stand will amount to a miscarriage of justice.
[17] Primary reasons [27].
[18] Primary reasons [28] - [31].
Grounds of appeal
The appellant advances two grounds of appeal in this court. The grounds are to the following effect:
1.Parliament did not introduce the violence restraining order laws so that the protected person can deliberately set up the person from whom they are being protected, knowing that the protected person cannot be charged for breaching the order.
2.The magistrate knew that the appellant had obtained a cancellation of the violence restraining order due to the protected person deliberately continuing to invite him to breach the order. The magistrate 'would not have given [the appellant] a fair trial and … was going to find [the appellant] guilty if [he] took it to trial'.
The merits of ground 1
Ground 1 in the appeal to this court effectively mirrors ground 2 of the grounds of appeal to the primary judge. It complains that the protected person deliberately set him up by contacting him. We would respectfully adopt the following observations of the primary judge:[19]
As is apparent from the above stated facts of the offences, ANM did initiate contact with the appellant under the false name … . Further, I accept on the basis of statements that the appellant made to the magistrate during his appearances before her Honour and the affidavits that he has filed in support of his appeal that by this initial contact ANM did encourage and induce the appellant to make contact with her. In addition, it is apparent from the terms of the appellant's letters dated 12 February 2017 and 26 May 2017 that they were written following, and at least partially in response to, conversations that the appellant had had with ANM some short time previously. However, and as the magistrate noted during the appellant's appearance before her on 6 March 2018, it is not a defence to a charge of breaching a violence restraining order under s 61(1) of the [Restraining Orders Act 1997 (WA) (ROA)] that the protected person encouraged or induced the person bound by the order to make contact with the protected person. Section 62 of the ROA provides for defences to a charge under s 61(1). None of those defences were available to the appellant.
[19] Primary reasons [33].
While the fact that a protected person initiates contact with the person bound by the VRO may be relevant to the determination of the appropriate sentence, it does not provide a defence to a charge under s 61 of the Act.
As already explained, even if, contrary to our view, the appellant established that he had a defence to the charges to which he chose to plead guilty, that would not justify overturning his conviction.[20]
[20] See [18] - [19] above.
For these reasons, ground 1 has no merit.
The merits of ground 2
As the primary judge observed, the fact that the VRO was cancelled at some point after the appellant committed the offences is of no relevance, and does not alter the fact that the appellant committed the offences.[21]
[21] Primary reasons [35].
The appellant's further assertion in ground 2 that the magistrate would not have given him a fair trial and was 'going to find [him] guilty' is mere assertion and has no reasonable basis. The assertion may be founded on the magistrate's observation, quoted at [11] above, that the fact that the protected person wrote to him would not act as a defence. To the extent that is so, as already explained, the magistrate's observation was plainly correct.
Ground 2 is without merit. Leave to appeal must be refused.
Conclusion
Both grounds of appeal are without merit. Neither has any reasonable prospect of succeeding. We would make the following orders:
1.Leave to appeal on both grounds is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH7 DECEMBER 2018
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