Debono v Director of Public Prosecutions for Western Australia - [2024] WASC 305

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DEBONO -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 305
CORAM:   MCGRATH J
HEARD:   26 AUGUST 2024
DELIVERED          :   26 AUGUST 2024
FILE NO/S:   SJA 1036 of 2024
BETWEEN:   JAMIE CHARLES DEBONO
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   SJA 1036 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G MIGNACCA-RANDAZZO
File Number            :   PE 44576/2023

Catchwords:

Criminal law - Appeal against conviction - Armed with dangerous weapon in circumstances likely to cause fear - Whether to set aside a conviction based on a plea of guilty - Integrity of plea - Extension of time to appeal not granted - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), pt 2, s 8(2)
Criminal Code, s 68(1)

Result:

Extension of time in which to appeal not granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms M L Wong

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Borsa v The Queen [2003] WASCA 254
Boughey v The Queen [1986] HCA 26; (1986) 161 CLR 10
Debono v Director of Public Prosecutions for Western Australia [2024] WASC 188
Gibson v The State of Western Australia [2017] WASCA 141
Gillespie v The State of Western Australia [2016] WASCA 216
Liberti v The Queen (1991) 55 A Crim R 120
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
The State of Western Australia v Majok [2005] WASC 13
Vella v The State of Western Australia [2006] WASCA 129
Wright v McMurchy [2012] WASCA 257

MCGRATH J:

The appellant appeals against his conviction for one charge of being armed with a dangerous weapon, namely a knife, in circumstances that were likely to cause fear to any person, contrary to s 68(1) of the Criminal Code (WA).
The appellant pleaded guilty to the charge before a magistrate whilst represented by counsel.[1] The appellant now wishes to set aside the conviction on his plea of guilty to the charge for the reason that he did not appreciate the nature of the charge. The appellant contends that to be convicted of the charge required a finding that he engaged in 'lunging motions' with a knife towards members of the public, when he did not do so. The respondent contends that the appellant's appeal is premised on a misunderstanding of the nature of the charge for the reason that lunging with the knife was not an element of the offence and therefore, the appeal should be dismissed. I agree with the respondent's submission. There is no merit in the appellant's contention.
[1] ts 3 - 4 (7/11/2023).
The appeal against conviction was filed out of time and, therefore, and an extension of time is required. For the following reasons, I have determined that an extension of time should not be granted and accordingly, the appeal is dismissed.
In these reasons for decision, I will consider the following:
1.The procedural history.
2.The ground of appeal.
3.The law regarding setting aside a plea of guilty.
4.The merits of the appeal.

Procedural history in the Magistrates Court

On 7 November 2023, the appellant appeared in the Perth Magistrates Court represented by a legal practitioner. The appellant was charged with 21 alleged offences. The 21 charges are outlined in Annexure A to this judgment. Relevantly, charge PE 44576/2023 pleaded that on 7 September 2023 the appellant was armed with a dangerous weapon, namely a knife, in circumstances that were likely to cause fear to any person.
On 7 November 2023, the learned Magistrate summarised the charges by referring to the charges in categories, stating that there were four charges of being armed or pretending to be armed in a way as to cause fear.[2] His Honour asked the appellant '[d]o you understand those other charges? I gather you've received some legal advice from Mr Woodford? Is that correct?' To that question the appellant stated '[y]es. Yes, your Honour'. The learned Magistrate then stated '[s]o you understand those charges. How do you plead to each and every one of those charges?' The appellant in response stated that he 'would just like to get everything gathered out. I would like to plead guilty to all charges'.[3]
[2] ts 4 (7/11/2023).
[3] ts 4 (7/11/2023).
The learned Magistrate observed that he had a further 60 other matters in his list for the day and therefore, was unable to sentence the appellant.[4] Accordingly, the learned Magistrate adjourned the sentencing hearing to 15 November 2023. There is no complaint by the appellant as to the manner in which the learned Magistrate put the charges to the appellant and received the pleas of guilty.
[4] ts 4 (7/11/2023).
On 15 November 2023, the facts upon which the appellant was to be sentenced in respect to charge PE 44576/2023 was read in open court by the prosecutor in the following terms:[5]
Charge 44576, being armed in a way that may cause fear. At 1.25 pm on Thursday, 7 September 2023, the accused was on Barrack Street near Murray Street in Perth. This location is the heart of the central business district and the entrance to the pedestrianised Murray Street Mall. At the material time the area was bustling with inner city workers, members of the public utilising the many retail and food outlets located in the vicinity.
The accused produced a 23 centimetre kitchen knife in his right hand and used the edged article in a manner that caused fear to several members of the public, resulting in several calls to the police for assistance. He was observed by one victim to act in an aggressive manner, shout out offensive remarks and make lunging motions with the knife resulting in significant fear that someone would be seriously injured or harmed.
After utilising the knife in the aforementioned manner he proceeded to conceal it down the front of his trousers prior to entering the Murray Street Mall. Police initiated an emergency response. The accused was tracked using City of Perth CCTV. The accused was physically apprehended by police and swiftly taken to the ground without incident. Officers searched the accused locating the knife on his person still secured in the front of his waistband trousers. The accused offered no particular explanation for possessing the knife, causing fear to the public as outlined. The accused was advised of the offence and present charges proffered.
[5] ts 3 - 4 (15/11/2023).
On 15 November 2023, counsel for the appellant in mitigation referred to the appellant's guilty pleas, the appellant's criminal record, his prospects for rehabilitation and his personal circumstances, including a medical condition in respect to which no medical reports were relied upon.[6]
[6] ts 15 - 17 (15/11/2023).
The learned Magistrate imposed a total effective sentence of two years imprisonment, backdated to 7 September 2023 for time already spent in custody. In respect to charge PE 44576/2023, the learned Magistrate imposed a 9 month term of imprisonment and ordered forfeiture of the knife.[7] That term of imprisonment was ordered to be served cumulative with the terms of imprisonment imposed for the two other charges of being armed in public. The learned Magistrate ordered that the appellant was eligible for parole. The respective sentences imposed are outlined in Annexure A.
[7] ts 38 - 39 (15/11/2023).
Subsequently, on 7 December 2023 the appellant filed an appeal in respect of the sentence imposed by the learned Magistrate. In DeBono v Director of Public Prosecutions for Western Australia,[8] Howard J dismissed the appeal against sentence.
[8] Debono v Director of Public Prosecutions for Western Australia [2024] WASC 188.

Appeal

On 20 June 2024, the appellant filed his appeal against conviction out of time in respect to charge PE 44576/2023. Therefore, the appellant must be granted an extension of time in which to appeal.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.
An appeal hearing is not a retrial of the issues that were before the primary court. The appellant must demonstrate that the primary court fell into error in a manner specified in a ground of appeal. The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[9] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[10]
[9] Criminal Appeals Act2004 (WA), s 8(1).
[10] Criminal Appeals Act2004 (WA), s 14.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[11]
[11] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
The appellant's grounds of appeal are in the following terms:[12]
1.Did not realise I pleaded guilty to 2 charges built into the one charge.
2.The learned sentencing Magistrate erred in not questioning police to the extent of the allegations about me trying to lunge or doing lunging motions at people in the community and didn't ask police if there was CCTV footage actually showing those lunging motions.
[12] Notice of Appeal filed 20 June 2024.
I note that attached to the Notice of Appeal the appellant has set out further contentions which I will receive as part of his written submissions. I will now consider the merit of this ground of the appeal. Given that the ground contends that the appellant's plea of guilty should be set aside, I will outline the relevant legal principles.

Legal principles of setting aside a plea of guilty

Section 8(2) of the Criminal Appeals Act provides that an appeal may be commenced against a decision 'even if the decision was made after a plea of guilty or an admission of the truth of any matter'. An appellate court will not set aside a conviction from a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[13]
[13] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157; Gibson v The State of Western Australia [2017] WASCA 141.
Whilst recognising that the circumstances which will constitute a miscarriage of justice cannot be exhaustively stated, there are three categories in which appellate courts have been prepared to set aside pleas of guilty, namely:[14]
1.Where the appellant did not understand the nature of the charge or did not intend to admit guilt;
2.If upon the admitted facts the appellant could not, in law, have been guilty of the offence; or
3.Where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.
[14] Vella v The State of Western Australia [2006] WASCA 129 [26]; Gillespie v The State of Western Australia [2016] WASCA 216 [34] ‑ [35]; Borsa v The Queen [2003] WASCA 254 [20].
A court will approach any attempt to set aside a conviction upon a plea of guilty with 'caution bordering on circumspection'.[15] This is all the more so when the offender has had the benefit of legal advice.[16] There is a distinction between legal advice and improper pressure. A legal practitioner who provides reasoned advice does so properly to assist the client to make the voluntary decision as to whether they will plead guilty.
[15] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [104]; Liberti v The Queen (1991) 55 A Crim R 120, 122.
[16] Wright v McMurchy [2012] WASCA 257.
It is not enough for the appellant to demonstrate, on appeal, that he was innocent of the charge to which he pleaded guilty.[17] That is because an accused person may enter a plea of guilty for reasons other than a belief as to their guilt. A person may plead guilty for many reasons, for example, to avoid publicity, to protect family, or to obtain the benefits of a discount at sentencing for a plea of guilty.[18]
[17] Meissner v The Queen 141,157; Gillespie v The State of Western Australia [34].
[18] Meissner v The Queen 157; Snook v The State of Western Australia [No 2] [106].

Assessment of the appeal

The appellant contends that he was told by his lawyer that he was 'not pleading guilty to lunging a knife' and 'was only pleading guilty to being armed in public'.[19] The appellant contends that he did not realise that he was 'pleading guilty to two charges but put into one charge'.[20]
[19] Appellant's written submissions, p 1.
[20] Appellant's written submissions, p 1.
Further, he contends he was not shown the CCTV footage and that he now understands that the footage supports a finding that he was not lunging at people with the knife. The appellant stated that he had been informed by the lawyer representing him at the sentence appeal that the CCTV footage did not show him lunging a knife at any person on Perth streets.[21] Therefore, the appellant contends that he could not be guilty of being armed with a dangerous weapon in circumstances that were likely to cause fear to any person.
[21] Appellant's written submissions, p 2.
The appellant states that he was told by his lawyer that 'if I pleaded guilty to all charges I would get an ISO order'.[22] The appellant therefore contends that he was misled.
[22] Notice of Appeal, written submissions, p 2.
There is no evidentiary basis to find that the appellant did not understand the charge or that he did not intend to plead guilty.
Further, there is no evidentiary basis that the appellant was not in possession of all relevant material facts. To the contrary, the appellant was represented by counsel who clearly had received instructions regarding the circumstances of the offending and the appellant's antecedents.
The respondent submits that the appellant's appeal concerns the first category set out in Vella v The State of Western Australia, namely that he did not understand the charge or did not intend to plead guilty. I agree with that submission.
The transcript discloses that the facts were read in detail and were accepted by the appellant at the sentencing hearing as forming the basis upon which he had entered his plea of guilty. There is no evidentiary basis for any assertion that the facts to which the appellant pleaded guilty comprised any falsehoods or that he did not understand the facts to which he pleaded guilty. Further, the appellant was represented by a legal practitioner.
The facts upon which the appellant pleaded guilty stated that he was 'making lunging motions with the knife' and did not contend that he directed the lunging motions at people. There was no suggestion by the prosecution that the appellant lunged with the knife at any person. He did not do so. Rather, he made lunging motions with the knife. These lunging motions were never directed at any person.
The appellant's appeal is based on the erroneous assumption that it was necessary for the prosecution to prove that he lunged at a person to prove the charge. The assumption is erroneous for the reason that it was only necessary for the prosecution to prove the elements of the offence, relevantly that he was armed in a way that may cause fear.
In respect to an offence of being armed in public, the prosecution must prove each of the following elements beyond a reasonable doubt:
1.That the appellant was the accused (identity).
2.That the appellant was armed with a dangerous weapon.
3.That the appellant did so in circumstances likely to cause fear to any person.
A dangerous weapon is something which is a weapon in the ordinary sense, that is something capable of being used to do another an injury with no other use. In order to prove that the appellant was 'armed' with a dangerous weapon, it is sufficient for the prosecution to prove that it was in his possession or he was equipped with it at the relevant time.[23] The word dangerous is given its normal meaning, being fraught with danger or risk; or, causing or occasioning danger, perilous, hazardous, risky, unsafe.
[23] The State of Western Australia v Majok [2005] WASC 13 [36].
In respect to whether the appellant's possession of the dangerous weapon was likely to cause fear to other persons, the word 'likely' is given its ordinary meaning, in that a possibility, as distinct from a probability, is not enough.[24]
[24] Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, 14 - 23.
The facts upon which the appellant was convicted on his own plea of guilty comprised, in part, that the appellant was walking along a major street in the centre of the central business district of Perth at 1.25 pm whilst the area 'was bustling with inner city workers, members of the public'.[25] At that time the appellant was armed by holding a 23 cm knife clearly visible to members of the public. Further, the facts provided that the appellant, whilst holding the 23 cm knife in his right hand, 'used the edged article in a manner that caused fear to several members of the public, resulting in several calls to the police for assistance'.[26] The facts stated that the appellant whilst armed with the 23 cm knife was observed to act in an aggressive manner and shout out offensive remarks.
[25] ts 3 (15/3/2024).
[26] ts 3 (15/3/2024).
Those facts alone are sufficient to establish that the appellant was armed with a dangerous weapon in circumstances that were likely to cause fear to any person, that is without any reliance on the contention that the appellant lunged with the knife. Most understandably, numerous people telephoned the police after observing the appellant holding the 23 cm knife in an aggressive manner in the middle of the day whilst walking down a very busy street in the middle of the city. It was not necessary for the prosecution to prove that the appellant lunged whilst armed with the knife. If the prosecution had not asserted that fact, the other objective facts were sufficient to establish the charge. The additional fact that the appellant did a lunging motion whilst armed with the knife may be a factor relevant to sentence.
Accordingly, the appellant was convicted of an offence of being armed with a dangerous weapon, namely a knife, in circumstances that were likely to cause fear and not an offence of lunging whilst armed with a knife. There was one offence only and that offence did not require proof of any lunging to convict.
If the fact of lunging was contested at the sentencing hearing the prosecution would have had to decide whether it wished to rely upon that fact as a factor relevant to sentence. If so, the prosecution would not only rely upon the CCTV footage of the offending but the witnesses, including the witness who the prosecution asserted observed the lunging. In that regard, I note that appellant's contention that the fact that 'members of the public rang police stating that they saw a man lunging a knife at people in public was just to get the police there quicker'.[27]
[27] Appellant's written submissions, p 2.
If the prosecution decided not to assert the contested fact that the appellant did a lunging motion with the knife, then in any event the other conduct of the appellant established the offence of being armed with a dangerous weapon in circumstances that were likely to cause fear to any person.
I am satisfied that the appellant pleaded guilty whilst being represented by counsel. The appellant, having heard the facts, did not dispute the contention that he lunged with the knife. However, as I have outlined, the proof of that fact was not necessary. As I have observed the prosecution did not assert the appellant lunged at a person with the knife. Rather, he made a lunging motion with the knife. The appellant's other conduct, given the circumstances, amounted to causing fear to any person. The appellant's counsel's advice that he was pleading guilty to the offence of being armed with a dangerous weapon, namely a knife, in circumstances that were likely to cause fear to any person and not with an offence of lunging whilst armed with a knife was sound advice. There is no legal basis upon which the plea of guilty may be withdrawn. The appellant has not established a miscarriage of justice.

Conclusion

Therefore, there is no merit in the ground of appeal. There will be no miscarriage of justice if the application for an extension of time in which to appeal is not granted. Accordingly, I do not grant an extension of time in which to appeal and therefore, the appeal is taken as dismissed.

ANNEXURE A

Custodial Sentences

Prosecution Notice	Charge	Offence	Date of offence	Penalty
PE 54066/ 2022	Stealing	Criminal Code (WA) s 378	05/11/2022	4-months (CC)
PE 5456/ 2023	Stealing	Criminal Code (WA) s 378	28/11/2022	2-months (CC)
PE 10564/ 2023	Being armed in a way that may cause fear	Criminal Code (WA) s 68(1)	28/02/2023	7-months (CC) (Head Sentence)
PE 17934/ 2023	Stealing	Criminal Code (WA) s 378	24/03/2023	3-months (CC)
PE 27113/ 2023	Being armed in a way that may cause fear	Criminal Code (WA) s 68(1)	30/05/2023	7-months (CC)
PE 33201/ 2023	Being armed in a way that may cause fear	Criminal Code (WA) s 68(1)	30/06/2023	8-months (CM)
PE 44576/ 2023	Being armed in a way that may cause fear	Criminal Code (WA) s 68(1)	07/09/2023	9-months (CM)

Non-Custodial Sentences (Fines)

Prosecution Notice	Charge	Offence	Date of offence	Penalty
PE 54065/ 2022	Trespass	Criminal Code (WA) s 70A (2)	5/11/2022	$1,000
PE 9537/ 2022	Criminal damage to property	Criminal Code (WA) s 444(1)(b) A	12/02/2023	$1,000
PE 10565/ 2023	Criminal damage to property	Criminal Code (WA) s 444(1)(b) A	28/02/2023	$1,000
PE 17935/ 2023	Unlicensed possession of ammunition	Firearms Act 1973 (WA) s 19(1)(c)	08/04/2023	$400
PE 31530/ 2023	Stealing	Criminal Code (WA) s 378	31/03/2023	$500
PE 31531/ 2023	Gaining benefit by fraud	Criminal Code (WA) s 409(1)(c)	31/03/2023	$500
PE 31532/ 2023	Gaining benefit by fraud	Criminal Code (WA) s 409(1)(c)	01/04/2023	$500
PE 31533/ 2023	Gaining benefit by fraud	Criminal Code (WA) s 409(1)(c)	01/04/2023	$500
PE 33202/ 2023	Possess a prohibited drug (cannabis)	Misuse of Drugs Act 1981 (WA) s 6(2)	30/06/2023	$300
PE 40375/ 2023	Disorderly behaviour in public	Criminal Code (WA) s 74A (2)(a)	11/08/2023	$400
PE 42750/ 2022	Trespass	Criminal Code (WA) s 70A (2)	04/08/2023	$1,000
PE 42751/ 2023	Stealing	Criminal Code (WA) s 378	04/08/2023	$750
PE 42752/ 2023	Criminal damage to property	Criminal Code (WA) s 444(1)(b) A	08/08/2023	$1,000
PE 53321/ 2022	Possession of stolen property	Criminal Code (WA) s 417(1)	07/09/2023	$750

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
26 AUGUST 2024