Director of Public Prosecutions (Cth) v Burgess (Ruling)
[2022] VCC 2275
•16 December 2022
[1]
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-02408
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DARRYL BURGESS |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2022; 30 November 2022; 14 December 2022 | |
DATE OF DECISION: | 16 December 2022 | |
CASE MAY BE CITED AS: | DPP (Cth) v Burgess (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2275 | |
REASONS FOR DECISION
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Subject: CRIMINAL LAW
Catchwords: Application for change of plea - Commonwealth offences – Sentence indication provided by Court – Miscarriage of justice test applied – Issuable question of guilt – Relevance of applicant’s subjective view of guilt – Erroneous legal advice by former lawyers – Weston v R considered – Jamieson v The Queen applied
Legislation Cited: Criminal Code Act 1995 (Cth.); Criminal Procedure Act 2009 (Vic.)
Cases Cited: R v Murphy [1965] VR 187; R v Asplund [2010] NSWCCA 316; Commonwealth Director of Public Prosecutions v FM [2013] VSCA 129; Kohari v R [2017] VSCA 33; Weston v R (2015) 48 VR 413; Meissner v R (1995) 184 CLR 132; Jamieson v The Queen [2017] VSCA 140; Gurappaji v The Queen [2018] VSCA 187; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Kumar v The Queen [2013] VSCA 297; White v R [2022] NSWCCA 241.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Stevens | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr R. Nathwani | Furstenberg Law |
HIS HONOUR:
Introduction
1In 1964, two members of the Victorian Supreme Court held that ‘a plea of guilty duly recorded provides the strongest evidence of guilt’.[2]
[2] R v Murphy [1965] VR 187 at 187.
2On 14 June 2022, the applicant was arraigned in the County Court and pleaded guilty to one charge of using a carriage service to groom a person believed to be under 16 years of age for sexual activity, contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth).
3Before sentence was imposed, the applicant informed the court that he wished to apply for leave to change his plea on grounds that included that he had received erroneous legal advice before pleading guilty.
4For the reasons set out below, I refuse the application and determine that the applicant should be bound by his plea of guilty.
Procedural History
5It is necessary to briefly set out the procedural history of this matter.
6The applicant was arrested on 17 August 2019 in relation to a series of online messages he had sent via the applications ‘Whatsapp’ and ‘Kik’ to an undercover police officer purporting to be ‘Sienna’, a 15 year old girl. These messages were sent in July and August 2019. The messages were highly sexualised and included a number of requests for ‘Sienna’ to meet the applicant so that the two could engage in sexual activity. The applicant also made a number of requests for ‘Sienna’ to send him ‘pics’ including ‘naughty’ ones.[3]
[3] A summary of the alleged offending is contained in the Summary of Prosecution Opening for Trial dated 4 August 2020.
7The applicant engaged MK Law as his legal representatives, and at a committal mention on 29 November 2019 he pleaded guilty. He was committed to the County Court of Victoria for a plea hearing on 25 June 2020.
8On 3 June 2020, Garde-Wilson Lawyers were instructed to act for the applicant. In June 2020, prior to arraignment in the County Court, the applicant made an application to withdraw his plea of guilty entered in the Magistrates’ Court. The prosecution did not oppose the application and, as the applicant had not pleaded guilty in the County Court, he did not need the leave of this Court to withdraw his plea.
9During this period, the parties had discussed resolution of the matter, which included:
i.On 17 June 2020, the Prosecution provided a ‘bottom line’ of a plea of guilty to a charge of procuring contrary to s 474.26(1) of the Criminal Code (Cth) in full settlement of the matter. This offer was rejected by the applicant.
ii.On 18 June 2020, an offer was made on the applicant’s behalf to plead guilty to one charge of grooming contrary to s 474.27(1) of the Criminal Code (Cth). This offer was rejected, and the prosecution ‘bottom line’ was reiterated. The applicant deposes that he was not aware that this offer was advanced on his behalf.[4]
[4] Affidavit of Daryl Burgess affirmed 1 October 2022 (‘Affidavit of Daryl Burgess’), [7].
10Due to delays stemming from the COVID-19 pandemic, on 2 July 2020 the matter was adjourned to a ‘holding date’ of July 2022 for mention.
11The prosecution filed and served a trial indictment dated 15 July 2020 which alleged the following offences:
i.Charge 1: Between 5 July 2019 and 17 August 2019, use a carriage service to procure a person believed to be under 16 years of age, contrary to s 474.26(1) of the Criminal Code (Cth).
ii.Charge 2: Between 12 July 2019 and 8 August 2019, use a carriage service to solicit child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth.).
12On 7 April 2021, a further plea offer was advanced on behalf of the applicant to one charge of transmitting indecent communications to a person believed to be under 16 years of age contrary to s 474.27A of the Criminal Code (Cth). This offer was rejected and the prosecution again reiterated its ‘bottom line’.
13The applicant instructed Doogue and George defence lawyers on 6 April 2022. On 9 May 2022 Ms Susanna Locke was briefed by Ms Ophelia Hollway of that firm to act on behalf of the applicant.
14As the case was ready for trial, it was listed for a trial to commence on 8 June 2022 and allocated to me. I held a mention on 6 June 2022 to ensure the case was ready for trial. At the mention, the applicant was represented by Ms Locke. Mr Stevens, who appeared for the prosecution, informed the court there was an outstanding disclosure issue and the trial should not commence on 8 June 2022 in fairness to the applicant. A short adjournment was requested.
15I vacated the trial date of 8 June 2022 and re-listed the trial to commence on 15 June 2022.
16On 6 June 2022, Ms Locke entered into discussions with the prosecution about the prospect of resolving the matter to a single charge of grooming contrary to s 474.27(1) of the Criminal Code (Cth). The Court was informed that these discussions were successful.
17On 8 June 2022, the applicant applied for a Sentence indication under s 207 of the Criminal Procedure Act 2009 (Vic.). On 9 June 2022, that application was listed to be heard on 14 June 2022. Neither party applied to vacate the trial date which therefore remained 15 June 2022.
18At 10:30 AM on Tuesday 14 June 2022, the matter proceeded before me as a Sentence indication Hearing on one charge of grooming. Ms Locke represented the applicant; Mr Stevens represented the prosecution.
19At approximately 1:00 PM on 14 June 2022, I delivered my sentence indication. I indicated that, if the applicant pleaded guilty to the offence of grooming before the Court, he would be convicted and sentenced to a term of imprisonment of 15 months to be served immediately. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the applicant would be released after serving 8 months upon giving a security by recognisance of $5,000.00 and to be of good behaviour for 2 years.
20At the request of Ms Locke, I stood the matter down until 4.00 pm so that she could obtain the applicant’s instructions as to whether he wished to accept the indication.
21The applicant accepted the indication given, and at 4:00 PM he was arraigned on one charge of grooming. He pleaded guilty. The matter was adjourned to 15 September 2022 for a plea hearing.
22On 18 July 2022, Doogue and George filed a Notice of Ceasing to Act. On 10 August 2022, Furstenberg Law – now representing the applicant – contacted the Court to advise that the applicant wished to make an application to vacate his guilty plea.
23On 12 September 2022, an ‘Application to vacate plea’ was filed with the Court supported by affidavits of the applicant’s former lawyers, Ms Hollway and Ms Locke.
24When the application was heard on 20 September 2022, counsel for the CDPP indicated that the application to vacate the plea of guilty was opposed. At that hearing, the applicant called two witnesses: Ms Locke and Ms Holloway. The matter was then adjourned to 30 November 2022 to enable the applicant to give evidence.
25On 1 October 2022, the applicant filed an affidavit he had affirmed on 1 October 2022. As this raised matters that I considered were potentially adverse to both Ms Locke and Ms Hollway, the Court requested that the affidavit be provided to each of them before the resumed hearing on 30 November 2022.
26At the resumed hearing on 30 November 2022, the applicant gave evidence and was cross-examined. Ms Locke and Ms Hollway were recalled and gave further evidence about matters referred to in the applicant’s affidavit.
27Notes of various conferences attended by the applicant, Ms Hollway and Ms Locke were provided to the court subsequent to the hearing on 30 November 2022.[5] The court also received further written submissions from both the applicant and the CDPP respectively:
(i)Supplementary submissions re: Application to Vacate Plea dated 11 December 2022; and
(ii)Supplementary Prosecution Submissions dated 12 December 2022.
[5] Exhibit 7.
28Brief oral submissions were made by the applicant’s counsel at a hearing on 14 December 2022. Mr Stevens informed the Court that the prosecution relied on its written submissions.
Grounds of the Application
29The grounds upon which the applicant relies in this application may be summarised as:
i.He received erroneous legal advice that:
(i)he would receive a sentence of 7 years’ imprisonment if he was found guilty after a jury trial;
(ii)did not explain all of the elements of the offence of grooming; and
(iii)he would have one week to inform the court of his response to the sentence indication;
ii.His plea of guilty is equivocal as he has never provided instructions to his lawyers consistent with guilt; and
iii.There is an issuable question of guilt.
30The applicant contends that these matters, when considered cumulatively and having regard to the pressure he was under on 14 June 2022, mean that holding him to his plea of guilty will result in a miscarriage of justice.
Evidence Relied upon by the Applicant
31In support of this application, the applicant has filed the following evidence:
i.Affidavit of Ophelia Hollway, solicitor with Doogue and George Lawyers, affirmed 1 September 2022;[6]
ii.Affidavit of Susanna Locke, Barrister, affirmed 9 September 2022;[7]
iii.Supplementary Affidavit of Susanna Locke affirmed 19 September 2022;[8] and
iv.Affidavit of Darryl Burgess affirmed 1 October 2022.[9]
[6] Exhibit 3.
[7] Exhibit 1.
[8] Exhibit 2.
[9] Exhibit 4.
32As noted above, the applicant, Ms Locke and Ms Hollway have each given evidence at the hearings.
33As the application relies heavily on what the applicant claims are deficiencies in the legal advice he received from Ms Locke and Ms Hollway, it is necessary to examine the evidence before the Court in some detail.
Evidence of the Applicant
34In an affidavit affirmed 1 October 2022, the applicant deposes that he has always maintained his innocence in this matter.[10]
[10] Affidavit of Daryl Burgess affirmed 1 October 2022 (‘Affidavit of Daryl Burgess’), [1].
35The applicant attests that he was not informed by his former legal representatives that a resolution offer was advanced to the Crown on his behalf on 17 June 2020.[11] His evidence was that his former lawyers were ‘basically talking … without instruction from me’.[12]
[11] Affidavit of Daryl Burgess, [7].
[12] Transcript of 30 November 2022, pg 16.26-27.
36The applicant deposes that the prospect of seeking a sentence indication was first suggested by Ms Locke on 3 June 2022. He stated that Ms Locke and Ms Hollway had advised on at least two occasions that he would ‘have at least two weeks to decide after the sentence indication to either accept it or proceed to trial.’[13] The applicant states that his instructions to proceed with the sentence indication were based on this advice.
[13] Affidavit of Daryl Burgess [18] and [19]; Transcript of 30 November 2022, pg 11.
37In answer to a question from his own counsel, the applicant said that prior to receiving the sentence indication on 14 June 2022, he had not received any advice ‘as to the sentence [he] would likely get if [he] had a trial and lost on the two charges that were on the indictment’.[14]
[14] Transcript of 30 November 2022, pg 12.
38The applicant was asked about a conference with Ms Locke and Ms Hollway on 14 June 2022. It was put to him by Mr Stevens that at the conference, Ms Locke advised him that if he was found guilty at trial on the two charges on the original indictment, he was likely be sentenced to a lengthy term of imprisonment with a non-parole period. He agreed that she said he would be looking at a sentence of something like two years to serve.[15] Later in his evidence he explained that this advice had been given ‘some days’ before the sentence indication application was heard.
[15] Transcript of 30 November 2022, pg 30.
39The applicant deposed that, after the sentence indication was given, he met with Ms Locke and Ms Hollway in chambers and was advised that if he did not accept the indication, proceeded to trial and was found guilty, he ‘would be looking at a possible 7 years imprisonment term and 15 years on SORA’.[16]
[16] Affidavit of Daryl Burgess, [22]; ‘SORA’ is a reference to the Sex Offenders Registration Act 2004 (Vic.).
40Counsel for the CDPP asked the applicant if, when he received this very different advice to the two years he had previously been advised about, he said to Ms Locke ‘well, you told me it was two years before and now it’s seven, what’s happened?’. He replied ‘No’. When it was suggested to him that Ms Locke had never said that he was going to be sentenced to seven years, he replied ‘Well if she didn’t say it, she certainly implied it’.[17]
[17] Transcript of 30 November 2022, pg 42.
41The applicant gave evidence that the element of intention in the charge of grooming was never explained to him and that he ‘didn’t understand what the charge was’.[18] He stated that his legal representatives had failed to obtain certain information from the prosecution that was critical to his defence[19] - namely, three digital photographs that went to the identity of the ‘Sienna Rose’ profile.[20] Further, the applicant stated that he was ‘never told … precisely’ what defence his counsel planned to run at trial and that he wished to proceed on a different defence in light of these photographs.
[18] Transcript of 30 November 2022, pg 9.
[19] Transcript of 30 November 2022, pg 19, 24-25.
[20] Transcript of 30 November 2022, pg 25.
42In the applicant’s words, he described that he perceived a ‘Catch-22’: accept an eight-month prison term with 8 years on the SORA, or proceed to trial, be convicted, and receive a seven year prison term with 15 years on the SORA.[21]
[21] Transcript of 30 November 2022, pgs 12, 37.
43He stated that, but for the advice he was provided relating to the likely sentencing outcome after a trial, he would not have pleaded guilty.[22] He explained that this included the advice he received about the likely period for which he would be a registered sex offender under the Sexual Offenders Registration Act 2004 (Vic.).[23]
[22] Transcript of 30 November 2022, pg 13.
[23] Transcript of 30 November 2022, pg 43
44The applicant stated that he was told on a couple of occasions that he would have ‘at least two weeks to make the decision about whether [he] would accept the sentencing indication’.[24] He was told this by both Ms Locke and Ms Hollway.
[24] Transcript of 30 November 2022, pg 11.
45Although the applicant described being under ‘extreme pressure’ to make the decision to plead guilty, he accepted in cross examination that he was ‘acutely aware of the implications of entering a plea of guilty to the sentence indication’[25] and that he made the decision of his own volition.[26]
[25] Transcript of 30 November 2022, pg 31.
[26] Transcript of 30 November 2022, pg 39.
Evidence of Ms Ophelia Hollway
46Ms Hollway deposes that she is an Australian Legal Practitioner at Doogue & George Defence Lawyers and was the solicitor with carriage of the matter of Darryl Burgess from 6 April 2022 to 15 July 2022.[27]
[27] Affidavit of Ophelia Hollway affirmed 1 September 2022 (‘Affidavit of Ophelia Hollway’), [1].
47Ms Hollway deposes that the applicant’s initial instructions were that he was not guilty of the charges, and these instructions were maintained until the conference on 14 June 2022 at which he indicated that he was prepared to accept the sentence indication.[28] The applicant provided the following instructions:
i.He agreed to sending the messages on the Whatsapp and Kik platforms but did not believe Sienna Rose was 15 years old. He believed that ‘Sienna Rose’ was an adult.[29]
ii.He formed this belief on two principal grounds: first, that the Kik platform was restricted to persons aged 17 and over; and secondly, that he had reverse-searched the images in ‘Sienna Rose’s’ profile and the results had indicated that the images were not of the same individual, reinforcing his belief that the profile did not match the user.[30]
[28] Affidavit of Ophelia Hollway, [7]; Transcript, 20 September 2022, pg 32.28-31.
[29] Affidavit of Ophelia Hollway, [8].
[30] Affidavit of Ophelia Hollway, [9-10].
48Ms Hollway attests that the applicant was advised by Counsel in the preparation for trial that, if he were to be found guilty after a trial, it would be far more likely that there would be a head sentence with a non-parole period.[31]
[31] Affidavit of Ophelia Hollway, [15]; Transcript, 20 September 2022, pg 30.26-27
49In her evidence in chief, Ms Hollway confirmed that she had discussed several cases with the applicant.[32] In particular, Ms Hollway accepted that these discussions included references to the case of Asplund.[33] I note that, in that case the accused was convicted and sentenced on appeal to a head sentence of seven years’ imprisonment after being found guilty by a jury of two counts of grooming contrary to s 474.27(1) of the Criminal Code 1995 (Cth). The non-parole period was four years.
[32] Transcript, 20 September 2022, pgs 30-31.
[33] R v Asplund [2010] NSWCCA 316.
50In relation to the case of Asplund, Ms Hollway stated that:
‘It certainly was never said to the applicant that that would be the outcome that he received, given every case rests on its facts and that case was quite different from my recollection from the applicant' situation…
That's not to suggest, however, that at some stage along the way, given the amount of information the applicant was receiving and the stress that he was under at the time, that he may well have come to a conclusion around that case being mentioned that was in fact incorrect.’[34]
[34] Transcript, 20 September 2022, pg 31.4-17.
51Ms Hollway denied ever instructing the applicant that there was a chance he would receive a sentence of seven years’ imprisonment if found guilty after a trial.[35] She also denied that the applicant ever explicitly advised her that he was pleading guilty to avoid a sentence of imprisonment of 7 years.[36]
[35] Transcript, 20 September 2022, pg 31.
[36] Transcript, 20 September 2022, pg 37.
52She stated further that when the applicant provided instructions to Counsel to proceed by way of Sentence indication, his main concern was the risk of a term of imprisonment.[37]
[37] Affidavit of Ophelia Hollway, [29]; Transcript, 20 September 2022, pg 37.
53Ms Hollway also deposes to the applicant’s conduct on the day of the Sentence indication Hearing on 14 June 2022. She states that ‘the applicant and [his wife] Mrs Burgess appeared anxious about the case and again raised concerns around prospects of success at trial’ and that ‘the applicant had extreme difficulty deciding which pathway to adopt’.[38]
[38] Affidavit of Ophelia Hollway, [33].
54Ms Hollway’s contemporaneous file notes, which were provided to the Court on 30 November 2022, state that a client conference was conducted at the County Court after the matter was stood down to consider the sentence indication.[39] She deposes in her affidavit that at this time the applicant ‘queried the process involving in changing his plea in the event he accepted the indication and later decided to proceed by way of trial’, and that he was ‘clearly troubled about finally having to commit to a decision.’[40]
[39] Ms Hollway’s File Note dated 14.06.2022.
[40] Affidavit of Ophelia Hollway, [38]-[39].
55Ms Hollway stated that the applicant was told at the time by Counsel ‘that he would have until that afternoon, meaning we could make a request of the Court that the matter be stood down for the applicant to talk with family and consider whether or not to accept the indication.’[41] She did not recall ever giving advice to the applicant that he would be given approximately two weeks to consider the sentence indication.[42]
[41] Transcript, 20 September 2022, pg 29.
[42] Transcript, 20 September 2022, pg 30.
56When the applicant arrived at the conference on the afternoon of 14 June 2022 to inform Ms Hollway and Ms Locke that he was accepting the sentence indication, Ms Hollway recalls that he advised that ‘he had reluctantly decided to plead guilty after discussing his options … because he was concerned about receiving a longer term of imprisonment in the event he went to trial and was found guilty.’[43] She denied that the applicant stated to her at this time that he required additional time to make his decision.[44]
[43] Affidavit of Ophelia Hollway, [45].
[44] Transcript, 20 September 2022, pg 39.
57Although Ms Hollway accepted the assertion by the applicant’s counsel that the applicant’s instructions at this conference concerning the offence were ‘equivocal’,[45] under cross-examination she clarified that the applicant was advised that if he pleaded guilty to the charge he would be accepting the elements of the offence.[46]
[45] Transcript, 20 September 2022, pg 33.
[46] Transcript, 20 September 2022, pg 40.
58Finally, Ms Hollway provided information about the change of plea application. She stated that the applicant contacted Doogue & George on 16 June 2022 to request advice about his options with respect to a change of plea, and that arrangements were made for him to discuss the matter with Senior Counsel.[47] The applicant later contacted her office on 13 July 2022 to provide instructions that he wanted to change his plea.[48]
[47] Affidavit of Ophelia Hollway, [48-49].
[48] Affidavit of Ophelia Hollway, [54].
59On 30 November 2022, when she was recalled after the affidavit of the applicant was provided to her, Ms Hollway explained that she kept contemporaneous electronic notes of the conferences she and Ms Locke had with the applicant.[49] She explained that she had not referred to the notes prior to preparing her affidavit.[50]
[49] Transcript 30 November 2022, pg 52.
[50] Transcript 30 November 2022, pg 61.
60She also stated that the applicant ‘would have been’ provided with advice about the intention required to be proved for the grooming offence.[51]
[51] Transcript 30 November 2022, pg 53.
Ms Susanna Locke
61In an Affidavit affirmed 9 September 2022, Ms Locke outlines that she is an Australian Legal Practitioner with over 12 years’ experience as an advocate in criminal law.
62On 9 May 2022 she was briefed by Ophelia Hollway of Doogue & George Lawyers to appear for the applicant in a trial listed to commence on 8 June 2022.[52]
[52] Affidavit of Susanna Locke affirmed 9 September 2022 (‘Affidavit of Susanna Locke’), [6, 9].
63Ms Locke deposes that, after familiarising herself with the brief of evidence, she formed the view that the case against the applicant was strong and advised him as such in a conference on 3 June 2022.[53] She deposes further that, although she advised the applicant that the prosecution case was strong, the applicant did have a defence available to him, namely a ‘fantasy’ defence.[54]
[53] Affidavit of Susanna Locke, [11, 28].
[54] Affidavit of Susanna Locke, [28]. I understand this to be a reference to the case of CDPP v FM [2013] VSCA 129.
64She also advised the applicant that on a plea of guilty to a charge of grooming it would be possible to ‘realistically submit that a Recognisance Release Order (RRO) with immediate release was within the available range.’[55]
[55] Affidavit of Susanna Locke, [32].
65Ms Locke met with Mr and Mrs Burgess in chambers on the morning of the Sentence indication Hearing. She advised the applicant, by reference to the case of Sanderson, that a sentence of 12 months’ imprisonment with release after 6 months on an RRO was ‘likely to be the upper limit of any immediate term of imprisonment the Court might indicate’.[56]
[56] Affidavit of Susanna Locke, [50].
66When the sentencing indication application hearing was stood down at approximately 12:15 pm on 14 June 2022, Ms Locke states that she conducted a further discussion with the applicant in a conference room at the Court. It is necessary to quote from this part of her evidence at some length:
‘During this conference … I outlined again for Mr Burgess that he could accept or reject his Honour’s sentence indication. I said words to the effect that if Mr Burgess rejected it, the trial would commence the next day on the present indictment. I also said words to the effect that if he accepted the sentence indication, he would be arraigned on a single charge of grooming … I told Mr Burgess that once we received his Honour’s sentence indication, I would seek some time to obtain Mr Burgess instructions.
During this conference, Mr Burgess asked whether his plea of guilty would be binding. Ms Hollway and I told Mr Burgess that it was difficult to vacate a guilty plea once it was entered. I said to Mr Burgess that, as an example, he would have to prove that the legal advice he had received from me and my instructor was deficient or incorrect.’[57]
[57] Affidavit of Susanna Locke, [54-55].
67Ms Locke stated that she considered that the sentence indication given by the Court was ‘towards the higher end of the range’, but that she advised the applicant that he would have the chance to produce further mitigatory material at a plea hearing.[58] Ms Locke denied advising the applicant that if he did not accept the plea, proceeded to trial, and was found guilty, he could expect to receive a sentence of 7 years’ imprisonment.[59]
[58] Affidavit of Susanna Locke, [61].
[59] Transcript 20 September 2022, pg 18.
68Ms Locke deposes that, when Mr and Mrs Burgess arrived at her Chambers at 3 PM to provide instructions, Mr Burgess ‘said words to the effect that he had decided to accept his Honour’s sentence indication because he understood the maximum term of imprisonment that he would serve was eight months and he preferred the certainty of knowing that to the uncertainty of proceeding to trial on the two charges on the Indictment, which he understood were more serious, and sacrificing the benefits of a guilty plea…’.[60]
[60] Affidavit of Susanna Locke, [62].
69I note that, according to Ms Locke, there is no suggestion that the applicant was weighing up accepting the indication on the one hand or risking a jury verdict and a possible sentence of seven years’ imprisonment on the other hand as is now being suggested.
70Ms Locke stated in examination that when Mr and Mrs Burgess came to her chambers that afternoon to provide instructions to accept the indication ‘they were settled’[61] and, at that point, ‘there was no equivocation from the applicant’.[62] Ms Locke stated that, if she had been made aware by the applicant that he required more time, then at 4 pm when the matter was recalled she would have requested an adjournment to allow such consideration to take place.[63] Further, she did not recall ever advising the applicant that he would be given two weeks to consider the sentence indication.[64]
[61] Transcript 20 September 2022, pgs. 8, 17.
[62] Transcript 20 September 2022, pg 24.
[63] Transcript 20 September 2022, pg. 17.
[64] Transcript 20 September 2022, pgs. 8, 17.
71Ms Locke recalls that, after the applicant was arraigned that afternoon, Mr and Mrs Burgess ‘expressed their relief at finally having some certainty’, and Mrs Burgess made a comment to the effect that the applicant ‘might finally have a decent night’s sleep tonight for the first time in three years’.[65]
[65] Affidavit of Susanna Locke, [69].
72Ms Locke did not accept that up to the point of accepting the sentence indication, the applicant was still protesting his innocence in relation to the offences.[66] Under cross-examination, she confirmed that it was made clear to him that ‘a plea of guilty would necessarily involve an acceptance that the applicant thought he was communicating with someone who was 15 years old.’[67]
[66] Transcript 20 September 2022, pg 15
[67] Transcript 20 September 2022, pg 23
73In her supplementary Affidavit affirmed 19 September 2022, Ms Locke addresses the advice she gave the applicant regarding the sentence he would be likely to receive following a trial resulting in a guilty verdict on the two charges. Ms Locke confirms that she discussed the case of R v Asplund with the applicant as an example of a sentence imposed on two charges of grooming following a trial. However, she said that she emphasised that no two cases are the same and that a direct comparison should not be drawn between the applicant’s circumstances and the facts in Asplund.[68]
[68] Supplementary Affidavit of Susanna Locke affirmed 19 September 2022 (‘Supplementary Affidavit of Susanna Locke’), [5]; Transcript 20 September 2022, pg. 12
74Ms Locke does not, however, depose to telling the applicant that he would receive a sentence of a specific length if found guilty after a trial. Rather, she recalls stating ‘words to the effect that he would not receive [a Recognisance Release Order] and instead should expect a lengthy term of imprisonment of a number of years, involving a head sentence and a non-parole period.’[69] In cross examination Ms Locke specifically denied advising the applicant that there was a likelihood that he would receive a sentence of 7 years’ imprisonment if found guilty after a trial.[70]
[69] Supplementary Affidavit of Susanna Locke, [7].
[70] Transcript 20 September 2022, pgs. 18, 20
Applicable Legal Principles
75With one exception, the legal principles that apply to an application to withdraw a plea of guilty are well settled.
76In Weston v R,[71] Redlich JA succinctly summarised several general and uncontroversial propositions that may be drawn from the various authorities[72] that relate to change of plea applications. Drawing on his Honour’s summary and other applicable authorities, those principles may be summarised as follows:
[71] Weston v R (2015) 48 VR 413.
[72] See R v Sagiv (1986) 22 A Crim R 73; Liberti v R (1991) 55 A Crim R 120; Boag v R (1994) 73 A Crim R 35; Meissner v R (1995) 184 CLR 132; and Maxwell v R (1996) 184 CLR 501.
i.The basis of a plea on arraignment is that in open court a defendant freely states her or his intention to plead guilty; the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt.[73]
[73] Cf. Criminal Procedure Act 2009 (Vic.), s 253B(a).
ii.A plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made.
iii.A person seeking to withdraw a plea of guilty bears the onus of establishing that a miscarriage of justice would arise if he or she were held to their plea.
iv.To impugn the integrity of the plea an 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 if he or she were to be held to their plea.
v.Ordinarily there will not be a miscarriage of justice in such circumstances unless the accused did not understand the nature of the charge or did not intend to admit he or she was guilty of it or if upon the facts admitted by the plea he or she could not in law have been guilty of the offence.[74]
vi.A further basis upon which a plea may be set aside will be where the plea was induced by intimidation of one kind or another, or by improper inducement or by fraud.
vii.There will be circumstances where the advice given to an accused by his or her legal representatives falls so far short of what might reasonably be expected, and results in the accused deciding to plead guilty under a material misconception as to the state of the law, this may qualify as a miscarriage of justice.[75]
viii.There is no exhaustive list of all possible cases of miscarriage of justice. It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise.
ix.A claim that circumstances exist which affect the integrity of the plea process must be approached with ‘caution bordering on circumspection’.[76]
x.There is a high public interest in the finality of legal proceedings.
[74] Meisner v R (1995) 184 CLR 132 at 157; R v Murphy [1965] VR 187 at 188.
[75] Kohari v R [2017] VSCA 33 at [133]-[134]; Gurrapaji [2018] VSCA 187 at [10]; Samios v DPP [2022] VSCA 108 at [44]-[48].
[76] Keenan v The Queen [2020] VSCA 105 at [50].
77In Weston, Redlich JA also examined an important principle concerning the integrity of a plea challenged before conviction. His Honour stated that, ‘consistent with the reasoning in the joint judgment in Maxwell[77] and Kumar[78], even if the plea was free and voluntary it will also be within a sound exercise of the discretion to allow the applicant to change his plea before conviction and sentence if the applicant establish that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage’.[79]
[77] (1996) 184 CLR 501.
[78] Kumar (No 2) [2014] VSCA 102.
[79] Weston v R (2015) 48 VR 413 at [109].
78This statement of principle, which distinguishes between the approaches to be taken when assessing an application to alter a plea before conviction and sentence and the approach to be taken when an application is made after conviction and sentence, is controversial. Although this approach has gained traction in some other jurisdictions – see particularly the recent judgement of the NSW Court of Criminal Appeal in White v R[80] – it has not received judicial endorsement in the Victorian Court of Appeal. In a separate judgement in Weston, Whelan and Kaye JJA were ‘unpersuaded that the suggested explanation based upon the distinction between applications made before and after conviction is to be found in existing authority.’[81]
[80] [2022] NSWCCA 241. The Court concluded that the test to be applied in cases where the accused has not been convicted is the ‘interests of justice’ test whereas the ‘miscarriage of justice’ test is reserved for cases such as The applicant’ where there has been a conviction against which the accused is appealing – see at [58]-[72].
[81] Weston v The Queen (2015) 48 VR 413 at [128]
79Further, in the 2017 decision of Jamieson v The Queen, the Court of Appeal expressed approval of the views of Whelan and Kaye JJA in Weston.[82] Consistent with the authorities, the drawing of a distinction between applications made before and after conviction is, to use the language of Whelan and Kaye JJA, an ‘unwarranted addition to, or qualification upon, the applicable test which is simply whether a miscarriage of justice would occur if the guilty plea was not permitted to be withdrawn.’[83]
[82] Jamieson v The Queen [2017] VSCA 140 at [101].
[83] (2015) VSCA 354 at [128].
80I therefore apply the ‘miscarriage of justice’ test in respect of this application. Mr Nathwani, counsel for the applicant, accepted that the primary test is one of a miscarriage of justice.[84]
[84] Applicant’s Supplementary Submissions at [23]; No argument based on White [2022] NSWCCA 241 was advanced by either party in this case.
Consideration
81As will be apparent from the above, there is a number of factual disputes in this case. Counsel for the applicant submitted that it is unnecessary for the Court to resolve these disputes because ‘what is more important is that the Court appreciate the applicant’s subjective mindset when deciding to accept the sentence indication…’.[85]
[85] Applicant’s Supplementary Submissions at [3].
82I do not accept this submission. The question of what advice the applicant received from his lawyers is crucial to the resolution of his application. Counsel for the applicant has characterised that advice as ‘potentially incorrect’;[86] ‘erroneous’[87] and ‘simply wrong’.[88] He also contended that the advice the applicant received ‘misled him’.[89]
[86] Application at [15].
[87] Applicant’s Supplementary Submissions at [17].
[88] Applicant’s Supplementary Submissions at [19].
[89] Applicant’s Supplementary Submissions at [2](e).
83The question to be answered is therefore what advice was the applicant given by his lawyers and not just what the applicant may have understood the advice was.
84This necessarily involves an assessment of the credibility and reliability of the witnesses’ evidence in this case which requires the Court to have regard to:
‘… the inherent consistency of the witness’ account; the consistency of that account with those of other witnesses; the consistency of that account with undisputed facts; the ‘credit’ of the witness (based upon matters which include, for example, demeanour); any relevant infirmities of the witness; and, importantly, the inherent probability or improbability of the evidence in question’.[90]
[90] Pell v Queen[2019] VSCA 186 at 255-6 [897] (Weinberg JA).
Deficient Legal Advice?
85In Gurappaji v The Queen, the Court of Appeal explained that inaccurate legal advice leading to a plea of guilty may provide a basis to set aside the plea even after conviction:
Imprudent and inappropriate advice from counsel may lay the foundation for a successful appeal against conviction following a plea of guilty. Convictions were thus set aside following a plea of guilty in O’Connor, where the applicant had pleaded guilty following erroneous legal advice as to the elements of the relevant offence; and also in O’Sullivan, where the accused pleaded guilty after police had manufactured a false confession, but the accused’s legal advice was that the confession could not effectively be challenged.[91]
[91] [2018] VSCA 187 at [10], references omitted.
86The applicant’s counsel identifies three pieces of what are said to be erroneous or incomplete advice that were provided to the applicant by his lawyers. They are:
(i)That he ‘would receive’[92] a sentence of seven years’ imprisonment if found guilty after a trial;
(ii)That he was not advised of the requisite mental element in respect of the charge of grooming; and
(iii)That he would have a week to consider the sentence indication.
[92] Applicant’s Supplementary Submissions at [2(e)].
87I examine each of these matters in turn.
Seven years’ imprisonment
88The evidence about the advice concerning imprisonment for seven years was discussed earlier in these reasons. I accept that the applicant’s lawyers discussed the case of Asplund with him. It is a leading case in this area. I also accept that they pointed out to him the more egregious circumstances in that case and how his case was less serious. Those circumstances included that the defendant had sent the 13 years old girl with whom he was chatting a picture of his erect penis; had given her over $2,500; and then tried to blame his 15 year old son for the offending.
89The applicant bears the onus to establish that he was given erroneous advice.
90The applicant’s evidence on this issue is inconsistent with that given by Ms Locke and Ms Holloway.
91Ms Locke deposed that she would not attempt with any specificity to indicate a probable sentence following trial other than a broad range. She said that she did not accept that she had told the applicant there was a likelihood he would receive a seven year sentence after trial.[93]
[93] Transcript 20 September 2022, pg 18.23-25; see also pg 20.4-5.
92Ms Hollway was clear about whether the applicant was advised he would be facing a term of imprisonment of seven years if he was found guilty by a jury. She was asked by Mr Nathwani if, at a conference, she advised the applicant that he was ‘looking at a possible seven year imprisonment term’. She replied:
Certainly not, that implies that he was advised that he would be receiving a seven year term following a trial, which was not at all the case.[94]
[94] Transcript 30 November 2022, pg 54.28-30.
93Having considered all of the evidence in this case, I do not accept that either Ms Locke or Ms Hollway advised the applicant that he would be sentenced to seven years’ imprisonment if convicted after a trial. There are several reasons for this conclusion.
94First, both Ms Locke and Ms Holloway were clear that they had not given this advice to the applicant. I assess this evidence in light of my view that no competent member of counsel could equate the applicant’s case with the circumstances in Asplund. In addition to the differences between the two cases noted above, the second charge on Mr Burgess’ indictment is using a carriage service to solicit child pornography material where the conduct relied upon consists of a series of request for ‘Sienna’ to send ‘pics’. In only one of those requests does the applicant ask for a ‘naughty’ pic.[95] This is a considerably less serious offence than the second charge on the indictment in Asplund.
[95] Summary of Prosecution Opening for Trial dated 4 August 2020, pp 12-13.
95Secondly, it is inconceivable that a case which received a sentence indication of 8 months’ imprisonment on a plea of guilty could result in a sentence of seven years absent the discount for pleading guilty. This is so even allowing that the trial would be in relation to the two charges on the original indictment. The conduct for which the applicant would be punished is identical in both cases.
96Thirdly, the applicant’s evidence was that Ms Locke had advised him a week or so earlier than 14 June 2022 that he faced a sentence of two years. If she had advised him on 14 June 2022 that he now faced a sentence of 7 years, I expect that the applicant would have queried what had changed so radically. There is no evidence that he did.
97Fourthly, there is no reference in Ms Hollway’s reasonably detailed notes to any such advice having been given at the conference between the time of the sentence indication and the time it was accepted. There is an incomplete record in the notes which states: ‘If found guilty at trial, charges would be procure and solicit. Likely penalty would be’. There is a further record of a conference on 3 June 2022 which records Ms Locke (‘SL’) as saying ‘If found guilty of charge 1 then think that the reality is that it is a very real prospect TOI imposed’. I have assumed that ‘TOI’ is an acronym for ‘term of imprisonment’. There is no reference to the likely term in the notes.
98Fifthly, I have concerns about the reliability of the applicant’s evidence more generally. On more than one occasion in giving evidence he contradicted himself on matters of significance. He denied ever being told that the prosecution case against him was strong when Ms Hollway’s file notes clearly record this being raised with him on more than one occasion. There are other aspects of the applicant’s evidence that are troubling. For example, he claims that his first solicitors made an offer to settle his case without first seeking his instructions to do so, which is something that would be most unusual if it occurred.
99The applicant also claimed that he was never aware of any plea offers being made in his case until seeing reference to that topic in Ms Locke’s first affidavit.[96] However, he was present at a directions hearing in this court on 9 December 2021 when that matter was discussed.[97] Further, previous plea offers were referred to in the applicant’s presence at the sentence indication hearing on 14 June 2022.[98] In these circumstances, I consider that his claim never to have been aware of such offers until he read Ms Locke’s first affidavit is implausible.
[96] Transcript 30 November 2022, pgs 14-16.
[97] A transcript of the directions hearing is Exhibit 5.
[98] Transcript 30 November 2022, pg 14.
100Finally, I note that under cross examination, the applicant told counsel for the CDPP that if Ms Locke didn’t verbalise the advice ‘she certainly implied it’.[99] This suggests a degree of uncertainty on the applicant’s part about whether he was told that he ‘would’ receive a sentence of seven years’ imprisonment.
[99] Transcript 30 November 2022, pg 42.8-9.
101I consider that it is quite likely that, as Ms Hollway surmised, the applicant ‘may well have come to a conclusion around that case being mentioned that was in fact incorrect’. In other words it seems conceivable that mention was made of the seven year sentence imposed in Asplund, and the applicant interpreted that as advice about the sentence that would be imposed on him.
102Before leaving this sub-topic, I note that in the case of Kohari v R,[100] the Court of Appeal concluded, after a review of the authorities, that ‘… it seems clear that mistaken advice, even rendered incompetently, will be of no avail when seeking to set aside a conviction based upon a plea of guilty if that advice goes only to the sentence likely to be imposed’ (emphasis added). This is because there are ‘strong public policy considerations that require finality in litigation, and … mistaken advice of that kind will be of no avail’ (emphasis added). [101]
[100] [2017] VSCA 33.
[101] [2017] VSCA 33 at [136], emphasis added.
103Even if the applicant was advised that he would receive a sentence of seven years’ imprisonment after a jury trial, based on this authority it is far from clear that this advice would assist him on this application as it was advice that went only to the sentence likely to be imposed.
Advice about the requisite mental element in the charge of grooming.
104Counsel for the applicant submits that he was ‘not properly advised as to the elements of the offence of grooming’.[102] From the questioning by Mr Nathwani of the applicant and his former legal advisers at the hearing, I understand that it is contended that the applicant was not advised about the need for the prosecution to prove that, when he communicated with ‘Sienna’, he intended ‘to make it easier to procure [her] to engage in sexual activity with [him]’.[103]
[102] Applicant’s Supplementary Submissions at [23]
[103] Criminal Code Act 1995 (Cth), s 474.27(1)(c)
105The applicant does not depose in his affidavit to this inadequacy in the advice he received. Despite complaining about other aspects of that advice, he makes no mention of this issue.
106The issue arose during the questioning of the applicant by his counsel at the hearing on 30 November 2022. The applicant was asked if anyone had explained to him the requisite intention for the charge of grooming. He answered ‘No, it was never explained’.[104] He was later asked by his counsel if his lawyers had told him ‘what the elements of the offence were’ to which he replied ‘yes, they did. They did explain’.[105] Finally, he was asked ‘what were you told or advised was your intention for you to be guilty of the offence?’. His answer needs to be set out verbatim:
The communication that I had with this person was the guilty part of it. That I was actually engaging in in grooming this particular person to be engaging in – to engage with – in sexual encounter.
[104] Transcript 30 November 2022, pg 9.15-21.
[105] Transcript 30 November 2022, pg 10.9-10.
107After he gave this answer, the following exchange occurred:
Q - All right, and that was advice provided to you, was it?
A - Ah, no. Not really. That’s my understanding of what was involved, the grooming charge.
108In cross examination, the applicant agreed that, before pleading guilty, he understood that the charge of grooming ‘… required an intention to make it easier to procure someone for sexual activity’.[106]
[106] Transcript 30 November 2022, pg, 30.24-26.
109Ms Locke was asked if she gave the applicant advice in relation to what is required for the elements of the grooming charge. Her reply was ‘… I expect, I expect I did, yes’.[107] She added that ‘intention was an issue and…it was a matter that was canvassed on a number of occasions’.[108] She explained that in explaining to the applicant the difference between the charges of procuring and grooming, ‘intention would’ve been discussed in that context’.[109]
[107] Transcript 30 November 2022, pg 64.13-16.
[108] Transcript 30 November 2022, pg 64.21-23.
[109] Transcript 30 November 2022, pg 65.8-9.
110Ms Hollway gave evidence that there was discussion with the applicant about the elements of the grooming charge.[110] She added that she would ‘never proceed in any way without taking a client through the elements’. Finally, she agreed with the proposition put by counsel for the applicant that this should be reflected in her file notes.[111]
[110] Transcript 30 November 2022, pg 53.15.
[111] Transcript 30 November 2022, pg 53.22-24.
111Ms Hollway’s file notes shed some light on this question.
112The applicant’s counsel refers to an entry which states: ‘Conference to set out elements of grooming with client (OH to do this)’. This appears in the notes after the reference to the mention at 4.00 pm on 14 June 2022. Mr Nathwani submits that ‘this indicates [the applicant] did not receive this advice until after his guilty plea, and so, it cannot be said he actually understood what he was pleading guilty to at the time of arraignment’.[112]
[112] Applicant’s Supplementary Submissions at [11].
113I note that Ms Hollway was not asked about her notes (which were only produced after the second occasion on which she gave evidence). It is unclear why they were not called for earlier. In these circumstances, it is difficult to reach the conclusion that Mr Nathwani urges the court to reach. It is conceivable, in light both of the evidence Ms Hollway and Ms Locke gave on this topic and where this record appears in the files notes, that, as the prosecution contends,[113] the note records a matter to be addressed in preparation for the plea hearing which was then scheduled for 15 September 2022.
[113] Pros further subs at [20].
114Mr Stevens refers the court to a record in the file notes on 1 June 2022 at a conference attended by Ms Locke, Ms Hollway and the applicant. In the context of preparing for trial, there is a reference to the requirement for the prosecution to prove intention to procure. This is explained as an ‘intention of meeting with person’.[114]
[114] Exhibit 7.
115Mr Stevens submits that this record should be considered in light of Ms Locke’s evidence that she recalled advising the applicant about the differences between the intentions for procuring and grooming. He points out that the key difference between the two is that for grooming, the intent that must be proved is to make it easier to procure whereas for procuring the intent that must be proved is an intent to procure.
116Bearing in mind that the applicant bears the onus of establishing that there will be a miscarriage of justice if he is not granted leave to withdraw his guilty plea, I am not satisfied that he was not advised about the requirement for the prosecution to prove the relevant intent prior to the time when he pleaded guilty to grooming on 14 June 2022.
Advice that the applicant would have a week to consider the sentence indication
117The applicant deposed that he was first advised to consider instructing his lawyers to seek a sentence indication on 3 June 2022.[115] He had previously discussed adopting this course with Ms Marcou, his previous lawyer.[116] He deposed that Ms Locke told him that he ‘would have at least two weeks to decide after the Sentence indication to either accept it or proceed to trial’.[117]
[115] Affidavit of Daryl Burgess at [18].
[116] Affidavit of Daryl Burgess at [10].
[117] Affidavit of Daryl Burgess at [18].
118Ms Locke disputed that she had given advice to the applicant about how long he would have to consider the indication given by the court.[118] Ms Hollway could not recall the applicant being advised that he would have two weeks to consider the indication.[119]
[118] Transcript 20 September 2022, pg 8.16-19; see also at pg 17.4-14.
[119] Transcript 20 September 2022, pg 30.4.
119Ms Locke also explained that, if she had been made aware by the applicant that he required more time to consider the indication, ‘at 4 pm when the matter was recalled, [she] would have asked His Honour … whether we could have some more time’.[120] It is common ground that no such request was made to the Court.
[120] Transcript 20 September 2022, pg 17.25-28.
120In his counsel’s final submissions, the Court is asked to conclude that ‘the applicant was erroneously advised that he would have a week to consider the sentence indication’.[121] This is based on a note made by Ms Hollway on 6 June 2022: ‘can adjourn for a week to consider the indication’.[122]
[121] Applicant’s Supplementary Submissions at [2(d)].
[122] Exhibit 7.
121The evidence of the witnesses on this question is not easy to reconcile. But even accepting that the applicant was erroneously advised he would have a week to consider any indication given by the court, this is not the type of erroneous advice which, on the authorities, would provide a basis for a change of plea. It is not even clear that this is properly characterised as ‘legal advice’. This was not advice that amounted to a ‘material misconception as to the state of the law’.[123]
[123] Kohari v R [2017] VSCA 33 at [133]-[134].
122Further, while having to make the decision on the afternoon of 14 June 2022 would have been stressful, the applicant could have asked his lawyers to seek more time but he did not.
Genuine Consciousness of Guilt
123The applicant contends that he has never genuinely accepted that he is guilty of the offence of grooming. Because he has always maintained his innocence, the guilty plea he made on 14 July 2022 is said by his counsel to be ‘equivocal’.
124On the question of the relevance of an accused’s subjective belief in innocence, the Court of Appeal in Jamieson referred to the earlier decisions in Kumar and Weston and stated:
In our view, neither Kumar nor Weston is to be understood, in respect of a change of plea application made before conviction, as going beyond this: that evidence of an accused’s subjective belief in innocence is capable of bearing upon the question whether a plea of guilty was tainted as not being a true admission; and, where the plea is shown to have been made with a view of obtaining a technical advantage, this may be relevant to a judge’s exercise of discretion on a change of plea application. That approach accords with logic. Of course, consciousness of guilt in the present connection involves a broader enquiry than as to subjective belief in innocence. If it was otherwise, a person pleading guilty though continuing to protest belief in innocence would inevitably succeed on a change of plea application made before conviction; and, consistently with principle, that is not what happens.[124]
[124] [2017] VSCA 247 at [106].
125On the evidence before the court, I accept that the applicant may believe that he did not commit the crime of grooming at the times alleged in the indictment. I note in this regard that Ms Locke gave evidence that she did not accept that ‘even up to the point of accepting the sentence indication, [the applicant] was still protesting his innocence in relation to the offences’.[125]
[125] Transcript 20 September 2022, pg 15.3-6
126The applicant’s belief in this regard must also be assessed against him having pleaded guilty at the Magistrates’ Court to the more serious charge of procuring as well as his plea of guilty to grooming in this court.
127Further, as is clear from the above extract from the case of Jamieson, a person’s subjective belief in their innocence is not determinative of an application to withdraw a guilty plea. In an oft-quoted passage from the case of Meisner v The Queen,[126] Dawson J explained that:
… a person may plead guilty for reasons that extent beyond that person’s belief in his guilt. He may do so for all sorts of reasons: for example …in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.[127]
[126] (1995) 184 CLR 132.
[127] (1995) 184 CLR 132 at 157; see also at 141 per Brennan, Toohey and McHugh JJ.
128In the exercise of my discretion, I have taken into account that the applicant is likely to believe that he is not guilty of the charge of grooming notwithstanding his guilty plea. That factor is not determinative and must be weighed in the mix along with the other factors.
Issuable question of guilt
129The applicant also contends that there will be miscarriage of justice in his case if he is not allowed to withdraw his guilty plea because ‘there is an issuable question of guilt’.[128] Reference is made in his counsel’s submissions to the judgement of Redlich JA in the case of Weston.
[128] Applicant’s Supplementary Submissions at [2](a).
130This contention is not expanded upon in the applicant’s submissions. I understand it to mean that, on the evidence before the court, there is a real question about the applicant’s guilt.
131It is important to understand what is meant in law by an ‘issuable question of guilt’ in this context. As the Court of Appeal explained in Jamieson, ‘in almost every case where an accused pleads guilty, some possible issue for trial – weaker or stronger – will have been abandoned’. Further, ‘the conception of an issuable question of guilt is different from a case in which there is simply no evidence which would sustain conviction’.[129]
[129] [2017] VSCA 140 at [44(6)].
132In such a case, it will invariably be a miscarriage of justice to refuse an application to withdraw a guilty plea. An example of such a case is provided by Monaghan v The King.[130] In that case, the prosecutor proposed to lead no evidence of the relevant alleged offending.[131] The applicant was permitted to withdraw his plea in what the court described as ‘very unusual circumstances’.[132]
[130] [2022] VSCA 247.
[131] [2022] VSCA 247at [25].
[132] [2022] VSCA 247at [29].
133Returning to the present case, I note the caveat expressed by the Court of Appeal in Jamieson, that before a trial has been run, a judge will necessarily be limited in assessing this question.[133] That will be especially so where, as here, the proposed defence is to be that the applicant was merely fantasising when he was communicating with ‘Sienna’ and did not have the requisite intent for the offence of procuring - i.e., an intent to ‘procure’ in the sense of intending to ‘encourage, entice or recruit’.[134]
[133] [2022] VSCA 247at [85].
[134] See CDPP v FM [2013] VSCA 129 at [58] and [60].
134In the present case, the evidence upon which a jury could infer the applicant’s intent at the time of the communications is quite substantial. As I observed in giving the sentence indication, the evidence reveals numerous requests by the applicant to meet Sienna in the context of some highly sexualised conversations. The requests to meet were quite specific as they involved references to possible meeting places and the means of transport that may be available to ‘Sienna’ to get there.
135While I can’t conclude that there is no defence available to the applicant - because ‘until a trial has been heard, the viability of even the most improbable defence cannot be decisively determined’[135] - I consider that the prosecution case against the applicant is strong.
[135] Jamieson [2017] VSCA 140 at [76]
136I am fortified in this assessment by the knowledge that his former counsel, who is an experienced criminal advocate – and, on any view, is better placed to make the assessment than I am having conferred several times with the applicant - considered that the case against the applicant was ‘strong’.[136]
[136] Affidavit of Susannah Locke at [11]
Pressure
137The applicant’s counsel referred to the applicant being unfamiliar with the legal system and being under considerable pressure on 14 June 2022 when he had to decide whether to accept the indication. I accept that that is the case. However, the applicant is in no different position to many who come before the courts. Compared to many he is an educated man with no cognitive deficiencies.
Finality of Legal Proceedings
138As noted earlier, part of the rationale for it being difficult to withdraw a guilty plea derives from the high public interest in the finality of legal proceedings. This public interest extends beyond the effect on the parties and witnesses in a particular case.[137]
[137] See D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34]-[36].
139The applicant contends that because the issues in his trial are relatively confined, there would be no inconvenience to civilian witnesses and little or no prejudice to the Crown if he was granted his wish to run a trial.[138] I consider that this submission misconceives what is meant by the relevant public interest.
One Final Matter
[138] Applicant’s Supplementary Submissions at [22].
140A notable feature of this litigation has been the absence of a written record of the advice provided to the applicant by his legal advisers at the time he accepted the sentence indication given by the court. The existence of such a record, signed by the applicant in acknowledgment of the advice he had received, may have prevented this dispute from arising or, at the very least, simplified the proceedings. The preparation of such documents was once routine and was always thought to represent good practice.[139]
[139] Cf. Kumar v The Queen [2013] VSCA 297 at [21].
Conclusion
141While the decision to plead guilty to a serious criminal offence is always a difficult one, I consider that the applicant made a rational and informed decision to plead guilty to the lesser charge of grooming in order to obtain the benefit of a plea of guilty and thus secure a significantly lower sentence than he would have received if he went to trial on the trial indictment. That decision was made by the applicant after he had been advised by competent and experienced criminal lawyers that the case against him was strong. He had the benefit of knowing the maximum penalty that could be imposed on him by the court.[140] There is nothing in the circumstances leading up to this decision by the applicant which means there will be a miscarriage of justice if he is held to his guilty plea.
[140] S 209(1) of the Criminal Procedure Act 2009 provides that the court, when sentencing the accused for the offence, must not impose a more severe sentence than the sentence type or maximum total effective sentence indicated.
142The application for leave to withdraw the applicant’s guilty plea is denied.
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