Director of Public Prosecutions v Karoumi (Ruling)

[2016] VCC 2106

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-16-00853

DIRECTOR OF PUBLIC PROSECUTIONS
V
AKRAM KAROUMI
JUDGE:	CHIEF JUDGE KIDD
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2016
DATE OF RULING:	22 June 2016
CASE MAY BE CITED AS:	DPP v Karoumi (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VCC 2106

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CHANGE OF PLEA APPLICATION

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Kilduff	Tait Lawyers
For the Respondent	Mr P Pickering	Office of Public Prosecutions

HIS HONOUR:

INTRODUCTION

1This is an application for change of plea by the Applicant, Akram Karoumi, in relation to the aggravated burglary charge. 

PROCEDURAL HISTORY

2The history of this matter is as follows.

3On 27 July 2016, a plea hearing commenced in relation to 5 co-accused: Sanar Ghanim, Edmon Hurmez, Rimon Hurmez, Riko Tomas and the Applicant, Akram Karoumi. The Applicant was assisted in court by an Arabic language interpreter, who was administered the interpreter’s affirmation. The interpreter was present next to the Applicant in the dock during the entire hearing. Indictment Number C1510419 was filed and certified. The Applicant was arraigned along with his co-accused. The Applicant pleaded guilty to the charges relating to him on the indictment, being charge 3, Aggravated Burglary (persons present) contrary to section 77(1) of the Crimes Act 1958 and charge 5, Assault contrary to Common Law.  The Applicant admitted his criminal record through his counsel.

4The plea hearing proceeded, commencing with the court first hearing from the prosecutor followed by Counsel for the co-accused.  The following day, 28 July 2016, the Court heard a plea in mitigation by Counsel for the Applicant. At the conclusion of this hearing, the matters were all adjourned for further plea on 31 August 2016.  All five co-accused were remanded in custody until that date.  The Applicant had, until that point, been on bail after being granted bail in the Magistrates’ Court on 16 May 2016.

5The Applicant’s counsel at the plea hearing on 28 July 2016 made submissions that the Applicant’s bail should be extended. I announced that I was of the view that further imprisonment was inevitable for the Applicant and his co-accused, and the application to extend bail was refused.  At various stages throughout the plea hearing I made it clear that given the seriousness of the offending, I was not convinced by counsel’s submissions that the appropriate sentence was ‘time served’ with a Community Correction Order (“CCO”). At one point I made it clear that this sort of case called for a further term of imprisonment, and that on the face of it, the features of this case called for such a sentence.  As such I did not order that the Applicant or his co-accused should be assessed for their suitability for a CCO.  I remanded the Applicant in custody.

6On 31 August 2016, mid-way through the proceedings, counsel for the Applicant indicated that he needed to speak with his client.  The Court stood down briefly.  Upon resuming, counsel for the Applicant indicated that the Applicant may possibly wish to change his plea, and he did not know whether he still held instructions to act for him.  The Court heard the remainder of the plea for the co-accused and returned to counsel for the Applicant at the conclusion of the hearing.  Counsel for the Applicant indicated that he would contact the Court prior to the sentence date, to confirm whether he still held instructions to appear for the Applicant and whether the Applicant intended to proceed with his change of plea application. The matters were each adjourned to Friday 9 September 2016, all for sentence, other than the Applicant’s matter which was listed for mention.

7Counsel for the Applicant contacted the Court later on 31 August 2016, confirming that he no longer held instructions to act for the Applicant and that the Applicant intended to apply to change his plea.  On 6 September 2016 the Applicant’s solicitors filed a notice of ceasing to act. 

8On 9 September 2016 the co-accused were each sentenced.  The Applicant’s matter was listed for mention directly after the sentencing hearing.  Mr Kilduff of counsel appeared for the Applicant.  He indicated that the Applicant intended to proceed with his application for a change of plea.  The matter was adjourned and the Applicant was further remanded in custody to a date to be fixed for the hearing of the change of plea application.

SUMMARY OF THE OFFENDING

9The factual basis for the offending was an agreed set of facts. Mr Kilduff, who appeared for the Applicant upon this application, confirmed with me that I should proceed upon the same basis for the purposes of this application.

10The offending occurred at a spare car parts business in Campbellfield.

11The Applicant attended this spare parts business on two previous occasions to enquire about car parts and then in relation to a mechanical issue. There were no issues which arose on either of those occasions.

12At approximately 4pm on 15 October 2015 the Applicant attended this spare parts business with his friend, Mr Hanna-Ishmoni, to enquire about a carburettor.  Other people were present at the premises where the two regular staff members and the owner, including a Mr A.  A dispute arose between the Applicant and the owner about the part not being available for sale.  The argument became heated before the Applicant was asked to leave.  This resulted in a “push and shove” between the Applicant and the owner.  Two of the staff members, including Mr A, separated the Applicant and the owner before the Applicant left with Mr Hanna-Ishmoni.  As the Applicant was leaving he made a general threat to return. 

13The owner phoned triple zero to request police attendance, however there was no police unit available.

14After leaving the premises the Applicant telephoned his son, that being Mr Sanar Ghanim.  The Applicant told Sanar Ghanim that he had been assaulted and humiliated.

15At approximately 4:45pm three vehicles containing seven males arrived at the spare parts business. The first vehicle was driven by Sanar Ghanim, with his adolescent brother as passenger. The second was driven by Riko Tomas, who was unlicensed, with passengers the Applicant, Edmon Hurmez and Rimon Hurmez, and the third vehicle arrived shortly afterwards, driven by Mr Hanna-Ishmoni.

16Sanar Ghanim exited the driver seat of the blue Suzuki vehicle whilst his adolescent brother exited the front passenger seat.  Sanar Ghanim then drew a small black handgun from the front of his shorts and racked the slide before running into the premises, with his adolescent brother walking in behind him.

17At this point the owner was sitting on the edge of the open boot of a car facing the road while it was parked just inside the premises. Upon seeing Sanar Ghanim coming towards him with a handgun drawn and pointing it forwards, he immediately ran to the kitchen area on the western side of the premises.

18Upon entering the premises through the large open roller door, Sanar Ghanim demanded to know who was fighting with his father, the Applicant, before he fired the handgun into the premises. Sanar Ghanim then followed the owner in towards the kitchen area.

19It was at about this moment that the Applicant, Edmon Hurmez, Rimon Hurmez and Riko Tomas were entering the premises.  They were a matter of seconds behind Sanar Ghanim. It was, however, common ground at the plea that they arrived after Sanar Ghanim fired the first shot.

20Sanar Ghanim returned to the open roller door when he could not locate the owner.  The owner in the meantime exited the kitchen area into the middle of the premises through a second door located at the rear of the kitchen. Sanar Ghanim saw the owner fleeing towards the rear of the premises.

21The Applicant then turned around and observed Mr A, a staff member, standing next to a hoist and approached him aggressively with a clenched fist before head-butting him to the face. This caused Mr A to move backwards in an attempt to avoid further confrontation. Sanar Ghanim immediately got off the ground and also approached Mr A while still armed with the handgun in his right hand.

22The Applicant held Mr A by the scruff of the neck and punched him several times to the face whilst standing in front of him. Sanar Ghanim took up a position to the right side of Mr A and held the handgun to the right side of A’s head whilst punching him to the throat and face with his other hand.  Mr A pleaded with Sanar Ghanim not to use the handgun, and when he attempted to move Ghanim’s hand away from his head, Ghanim discharged a bullet from the handgun. The bullet grazed the right side of Mr A’s head above the ear, causing an open wound which immediately started to bleed. 

23During this whole episode, Edmon Hurmez, Rimon Hurmez and Riko Tomas remained in close proximity to Sanar Ghanim and his father, the Applicant.  

24Prior to exiting the premises Sanar Ghanim threatened to return and burn down the building if anyone reported the matter to police and then drove off in the car with his adolescent brother and father. The remaining accused left in the other vehicles.

25Once they all left an ambulance was requested for Mr A, who was conveyed to the Royal Melbourne Hospital and head scans were conducted.  No further information concerning his injuries have been provided. 

26The whole episode was of approximately one minute’s duration.  Most of the episode was captured on CCTV – including the first part of the Applicant’s assault upon Mr A.      

INTERVIEWS

27The Applicant was interviewed twice by the police. The Applicant gave varying accounts of what occurred and of his role in the offending. In his first interview the Applicant said that when he attended Botani Spare Parts earlier in the day, he was assaulted by five people and the owner of the shop had a gun and he was thrown out of the shop after being kicked in the back. The Applicant said he called his son Sanar, and when he arrived “they” started shooting at him. The Applicant said that no-one else attended with him and his son and he denied that his son was armed. He said that he heard the owner of the shop use the gun twice. He denied going back into the shop a second time. He said that he was unconscious at the time and did not realise that he was with the other accused.

28During his second interview he said that the owner of the shop pulled a revolver on him and the workers at the shop had blocked the door so he couldn’t get out.  The Applicant said after that incident he called his wife, not his son Sanar.  The Applicant never actually left the area after the initial incident. He said that he could not remember anything about the shooting incident as he did not have full consciousness.

BASIS OF AGGRAVATED BURGLARY CHARGE  

29The Applicant pleaded guilty to aggravated burglary upon the basis that he entered with intent to commit assault (or assist others in an assault) and at the time knew that a person was present.

30Similarly the co-offenders Edmon Hurmez, Rimon Hurmez, and Riko Tomas each pleaded guilty to aggravated burglary upon the basis that they each entered with intent to commit assault (or assist others in an assault) and at the time knew that a person was present. The co-offender Sanar Ghanim pleaded guilty to aggravated burglary upon the basis that he entered with intent to commit assault and at the time possessed a weapon (the handgun) and knew that a person was present.

THE EVIDENCE ON THE CHANGE OF PLEA APPLICATION

The Applicant

31An affidavit sworn by the Applicant was tendered at the change of plea application.  The applicant deposed as follows:

1.       That I am the Defendant Applicant in this matter.

2.       I speak Arabic but cannot speak, read or write English.

3.       Prior to 7 September 2016 I was represented by Lewenberg & Lewenberg.

4.Prior to 27 July 2016 I had met with a lawyer together with an interpreter on two occasions – 14 and 16 May 2016.  I did not understand what aggravated burglary was and it was not explained to me in a way that made me understand.  The lawyer told me that if I pleaded guilty I would be out after “a couple of months”, or time served and get a CCO.

5.On 27 July 2016 I entered a plea of guilty to one charge of aggravated burglary one charge of assault at common law.

6.Prior to appearing in Court on 31 August 2016 another prisoner explained to me what aggravated burglary was and I was adamant that I was not guilty of aggravated burglary.  Accordingly, I advised my lawyers that I wanted to change my plea to not guilty. 

7.       My lawyers did not put evidence of an earlier incident before the court.

32The Applicant gave viva voce evidence confirming the above.

33At first the Applicant said his lawyers explained to him what aggravated burglary was in the second consultation session but not the first consultation session.  He later said that aggravated burglary was not explained at all by his previous lawyers. He said that his previous lawyers did not explain the charge correctly to him.  He said he was an illiterate layperson, who had never been to school and he would sign anything if someone told him to sign. He said that no one forced him to plead guilty, but that when he pleaded guilty on 27 July 2016 no one explained to him the legal meaning of aggravated burglary. He explained that he did not know what the charge was, so he said ‘guilty’. When he pleaded guilty he did not have any idea of the concept of not guilty. He did not know the difference between guilty and not guilty.

34The Applicant said he received the ‘indication’ in relation to his sentence from the lawyers who, he said he trusted, and therefore decided to plead guilty.  At one point the Applicant said that he understood the worst case scenario would be an extra two or three months and that is why he pleaded guilty. 

35He gave further evidence that a prisoner advised him that aggravated burglary involved at least some kind of forceful entry - such as breaking down a door – followed by a theft or the causing of damage. He formed the view that he could not be guilty of aggravated burglary because he did not do any of these things. He asserted that he was not guilty of aggravated burglary because he did not do these things. Under cross-examination he said he was told by the prisoner that in addition to committing theft or damage to property the aggravated burglary might be committed if an ‘assault’ were committed after forceful entry, but again he claims there was no forceful entry. 

36He accepted he pleaded guilty to aggravated burglary and common law assault at the committal hearing.

Ms Giselle Nehma (previous solicitor for the Applicant)

37Ms Giselle Nehma from Lewenberg & Lewenberg Solicitors gave evidence that she had the conduct of the Applicant’s matter from sometime in July 2016. She also gave evidence of a conference with the Applicant and Mr Sala of counsel on 20 July 2016. She said that the Applicant did raise a concern about the plea of guilty to the charge of aggravated burglary.  He queried the nature of the aggravated burglary charge, and he indicated that he had not stolen anything from the premises.  Mr Sala then explained to him the nature of the charge, and confirmed that stealing something from the premises was not required to make out the offence. Mr Sala advised that the charge was otherwise made out based on his instructions.

38As for possible sentence, Mr Sala indicated that he was of the view that a CCO was in range.  He also indicated that it was likely that a term of imprisonment would also be in range.  He explained that whether or not the term of imprisonment already served by the Applicant was enough was a question for the Court. He said while he couldn't give a definitive answer he would have thought that time served and a CCO was certainly within range.

39Ms Nehma said she was present at Court on 31 August when the Applicant indicated that he wished to change his plea.  Ms Nehma and Mr Sala of counsel conducted a conference with the accused. The Applicant instructed that at the time of the committal, Mr Sala did not tell him the relevant sentence for each charge and had not explained to him the nature of the aggravated burglary charge, and that if he had, he wouldn't have pleaded guilty.  Mr Sala indicated that he would reiterate the advice that he had given to the Applicant at the conclusion of the committal, which was that the relevant question for the court was what his intention was at the point of entering on the second occasion.  Mr Sala advised that the matter had resolved to the charge of aggravated burglary on the basis that the Applicant had an intention on the second occasion to have a fight.  The Applicant instructed that he did not understand the nature of the aggravated burglary charge, at which point Mr Sala again explained the charge elements.  The Applicant instructed that he did not attend on the second occasion with the intention to have a fight, but rather to stop his son.  On that basis, he wanted to change his plea with respect to the charge of aggravated burglary, and as far as he was concerned, he was only guilty of assault.

40An interpreter was present during each of these conferences.

Mr Sala (previous counsel for the Applicant) 

41Mr Sala of counsel gave evidence that he acted for the Applicant at the committal proceedings and at the plea. He said that the Crown offered to resolve the matter on a plea of guilty to charges of aggravated burglary and common assault and he simply then put it to the Applicant. The Applicant was in custody at the time.

42He met with the Applicant sometime prior to the committal, which was conducted on 16 May 2016. During the conference, the focus then was upon the attempted murder charge.  He had a discussion with the Applicant about a number of different features and one of them was whether he ought to make an offer.  There was a discussion about the charges of aggravated burglary and the Applicant was quite adamant that he hadn't stolen anything. Mr Sala explained to the Applicant at some length that it did not matter that no items had been stolen as the basis of the charge was that entry occurred with an intention to cause serious injury.  Mr Sala had a similar discussion with the Applicant at the committal. All these conversations were conducted through an interpreter.

43On 20 July 2016 the Applicant again raised the issue about his intention upon entry on the second occasion, saying that his intention upon entry was only to ensure that his son did not do anything wrong. Mr Sala explained to him again that if he had an intention upon entry to cause injury or in any way be involved with anyone who did, that would be a problem. Mr Sala had a frank discussion with the Applicant about the likelihood of successfully running the defence that his intention upon entry was only to ensure that his son did not do anything wrong. He discussed with him the likelihood of a jury accepting this account. In doing so Mr Sala to the Applicant the existence of the CCTV footage, the fact that the Applicant was the reason for everyone attending at the premises, the fact that he would have to give evidence to support that account, and the difficulties presented by his contrasting statements in his two police interviews. The discussion seemed to satisfy the Applicant, Mr Sala said.

44On the question of sentence, Mr Sala advised the Applicant at the committal prior to pleading guilty that in his view the likely outcome would be either that he would serve a short period in custody and then be released, pursuant to parole, or alternatively that he would receive a sentence which involved time already served with a CCO. He clarified that he advised that it was his view that the Applicant might be required to serve a few more months and then be released. He gave the Applicant the advice on the basis that he remained in custody at the time of the plea.  Mr Sala advised him at the committal stage that in the end the sentence disposition would be a question for the court.

45On 31 August 2016 Mr Sala met with the Applicant along with his instructor (Ms Nehma). The Applicant raised a number of issues again about his intention upon entry on the second occasion and also that there was an issue in terms of the lack of video or CCTV footage from his first attendance. The Applicant then he told him he wanted to change his plea.

46I note that when the Applicant was arraigned in the County Court on 27 July 2016 he had served 203 days in custody (just under 7 months).

BASIS OF CHANGE OF PLEA APPLICATION

47The Applicant sought to change his plea of guilty in relation to the aggravated burglary charge only. The Applicant also pleaded guilty to common law assault and he does not seek to withdraw that plea of guilty. 

48There appear to be two related prongs to the application to withdraw his plea.

49First, it is said the Applicant did not understand the true nature of the offence of aggravated burglary at the time he entered his plea of guilty. While he says it had never been properly explained to him by his lawyers, the application was put by his counsel upon the basis that the lawyers did explain it but he did not understand it and therefore misunderstood the nature of the offence.  I think it is also said he did not understand the process of pleading guilty. The integrity of his plea of guilty was therefore infected by misunderstanding and ignorance. He therefore entered the plea without believing himself to be guilty.

50Second, against this background of misunderstanding and ignorance, it is said the Applicant entered his plea for a technical advantage, namely a significant sentencing discount without believing himself to be guilty. He misunderstood the legal advice given to him about the sentencing discount. As a consequence the Applicant believed, wrongly, that his plea of guilty “may gain him a substantial discount to the position of time served and a CCO” and that he would serve no more than a further two or three months in prison in addition to the time he had already served.

51Thus the change of plea application is that the Applicant entered the plea for this technical sentencing advantage, without believing himself to be guilty.

Interpretation issue and supplementary evidence

52Before I delivered my ruling today I was informed by Mr Kilduff that the Applicant had difficulty understanding the interpretation of the evidence at the hearing on 2 June 2016.  The interpreter was Sudanese and the Applicant is Iraqi.

53I allowed Mr Kilduff to lead further evidence today from the Applicant with the assistance of a different interpreter.  The Applicant was satisfied with the interpretation.    

54The Applicant’s evidence today confirmed the reasons for changing his plea as being essentially the two reasons about which he gave evidence last time, which I have summarised above, and which were contained in his affidavit at paragraphs [4] and [6].

55I summarised what I understood these two reasons to be and Mr Kilduff agreed they were the two reasons.

56I then directed that the evidence of the previous lawyers – which had been recorded – to be played to the Applicant and interpreted with the assistance of today’s interpreter.

57Upon resuming Mr Kilduff confirmed that this had occurred. Mr Kilduff advised that the Applicant had instructed him that the Applicant was satisfied with the interpretation. Mr Kilduff confirmed that the Applicant had instructed him that my summary of the two grounds to the change of plea application was correct. Mr Kilduff confirmed that no further evidence or argument was required.

LEGAL PRINCIPLES

58The general principles relating to a change of application are conveniently summarised by Redlich JA in Weston v The Queen[1]:

1.The basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and 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.

2.The 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.  Its significance rests in part upon the high public interest in the finality of legal proceedings.

3.To permit the withdrawal of a plea of guilty before conviction or the overturning of a conviction on appeal where the integrity of the plea has not previously been challenged depends upon there being in the Court’s opinion a miscarriage of justice if the Applicant were to be held to his plea. 

4.The Applicant seeking to question the integrity of his plea, whether before or after conviction bears the onus of establishing such miscarriage.

5.To impugn the integrity of the plea, whether before or after conviction, the Applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the Applicant to his plea.  Some of the more common examples cited that may justify the conclusion that the Applicant should not be held to his plea are that the Applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt.

6.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.  The exercise of the discretion is not to be fettered by any preconceptions of limitations arising from the approach taken in previous decisions.

7.A claim whether before or after conviction that circumstances exist which affect the integrity of the plea process must be approached with caution.

[2]

[1]Weston v The Queen (2012) 48VR 413 (“Weston”).

[2]Ibid, 444 [109].

59The following principles listed by Redlich JA in Weston concern the integrity of a plea challenged before conviction and sentence:

8.Where the integrity of the plea is in issue at the time of the plea or is challenged before conviction, the position is as stated in Kumar.  Where the Applicant seeks to alter his plea before conviction and sentence, the judge may entertain that course upon finding a circumstance established that affects the integrity of the plea.

9Consistent with the reasoning in the joint judgment in Maxwell and Kumar, 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.[3] 

[3]Ibid.

60Principles 8 and 9 are more controversial. These principles are to the advantage of an accused. In a separate judgment, Whelan JA and Kaye JA noted their reservations about these propositions[4]. Even applying these principles, I have come to the conclusion in this case that the Applicant has not established there would be a miscarriage of justice if he were to be held to his plea.

RESOLUTION

[4]Ibid, 449 [128].

Misunderstandings about the offence of aggravated burglary – no belief as to guilt

61Against that background, I turn now to the specific arguments which turn upon a misunderstanding and/or mistake as to the true nature of aggravated burglary. 

62I find the elements of the offence of aggravated burglary were properly explained to the Applicant by his counsel and instructor through interpreters. Mr Kilduff conceded as much on this application. In particular, on the evidence from the previous practitioners, I find the Applicant was clearly advised that the relevant part of mental element was made out if he entered with intent to assault. The Applicant was advised, correctly, that it did not matter if he did not steal or damage anything.

63Reference was made in the argument to the evidence of the previous lawyers that the Applicant gave instructions that he did not enter the premises with an intent to assault but rather entered to ensure that his son did not do anything wrong. According to Ms Nehma, this was the initial reason given by the Applicant on 31 August 2016 as to why he wanted to change his plea. In my view this does not assist the Applicant for the following reasons:

·Mr Kilduff accepted that the Applicant was not relying upon this issue – or any misunderstanding in relation to this issue – in support of his change of plea application. I note that the Applicant gave no evidence before me about this issue. He did not say this was the reason for changing his plea;

·In any event, I find that the Applicant was fully advised as to the problems with this possible defence; 

·Viewed objectively, that advice was sound and appropriate. The case that the Applicant entered with an intention to assault and not to restrain his son was overwhelming:

Ø     It was the Applicant who instigated this work place invasion;

ØThe CCTV footage shows the Applicant to be in an agitated and aggressive state.  By his presence and conduct he enflamed the overall situation. Shortly after entry, the Applicant, together with his son Sanar Ghanim, committed a sustained assault upon Mr A. The Applicant pleaded guilty to common law assault and does not seek to resile from that plea today. The fact that he committed such an assault within seconds of entry supplies a cogent basis for the inference that upon entry he intended that an assault would occur. 

ØThe claim that he entered to ensure his son did not do anything wrong is inconsistent with the accounts supplied by the Applicant in his two interviews with police;

ØIt is true that at one point the Applicant attempted to restrain his son, Mr Sanar Ghanim, who was brandishing the gun. This simply confirms the Applicant did not want the firearm involved in the assault. 

·I find the Applicant made an informed and considered decision that this defence had little chance of success and that he had no viable defence to the charge of aggravated burglary.

64The evidence of his previous legal representatives shows the Applicant was able, and did in fact, challenge them about the nature of the aggravated burglary charge, about why he was pleading guilty if he had not stolen anything and about why he was pleading guilty given his assertion that his intention upon entry was only to ensure that his son did not do anything wrong. Both his former solicitor and counsel gave evidence to the effect that he was satisfied with their explanation and advice.  This suggests to me that the Applicant was an inquisitive man, concerned to ensure he understood why he was pleading guilty, and why certain defences were not viable.

65I find that the Applicant decided to change his plea when he realised that he would probably not receive the sentence he expected or hoped for. The Applicant has then engaged in a process where he has re-constructed the level of his understanding in relation to the nature of the aggravated burglary offence at the time he entered the plea. I will allow that he may have done this unwittingly or sub-consciously, or at least partly so.  On any view, I find the Applicant to be a generally poor historian when it comes to recounting his level of understanding about the advice he received prior to entering his plea of guilty. Likewise, I find the Applicant to be a poor historian when it comes to recounting his level of understanding of the offence of aggravated burglary when he pleaded guilty. This is highlighted by the many and varied reasons he offers for seeking to change his plea.

66I find that when the plea was entered by the Applicant it was entered upon sound legal advice with full knowledge of the law and facts. He pleaded guilty upon the basis that he entered the premises with an intention to assault. It was a decision made after receiving sound advice concerning this element.  The Applicant understood the charge of aggravated burglary to which he pleaded guilty, and he made an informed plea to it. I find that the Applicant intended to admit and accept his guilt of this offence.

67I also find the facts overwhelmingly support the element that he entered the premises with an intention to assault.

68The Applicant said no one forced him to plead guilty. The Applicant’s plea of guilty was not tainted by any pressure.

69If the Applicant is labouring under a misunderstanding, it does not raise a doubt about his own perception, at the time he entered the plea, of his guilt.  That misunderstanding has arisen subsequent to the plea being entered and has been caused by some plainly incorrect advice from a fellow prisoner. That incorrect advice is to the effect that in order to be guilty of aggravated burglary there must be forcible entry followed by theft or damage. The Applicant now misunderstands this to represent the law, when it does not, and therefore claims he is not guilty. The Applicant’s current misunderstanding of the law – based upon the subsequent and flawed advice of the prisoner – does not deprive the plea of the quality of a true admission of guilt. That is because, contrary to his current misunderstanding, the offence of aggravated burglary does not in fact require forcible entry (as distinct from trespass) followed by theft or damage (as distinct from assault).  In short, his admission, through his plea, of his intention to commit an assault upon entry onto the premises, is unaffected by his current and misplaced misunderstanding as to the nature of the offence of aggravated burglary.

70There was some suggestion in the application that the Applicant did not understand the arraignment process of pleading guilty or not guilty and that this contributed to an undermining of the integrity of the plea.  I reject that for the following reasons:

·I reject the Applicant’s evidence that he did not understand the distinction between pleading guilty and not guilty. This is not someone who pleaded guilty at the last minute under stressful or pressing circumstances. That situation might call for great scrutiny, especially when it involves language difficulties and interpretation issues. Here the Applicant pleaded guilty on two separate occasions to two offences (aggravated burglary and common law assault) – first in the Magistrates’ Court and then later in the County Court;

·I repeat the unchallenged evidence of his previous lawyers that he was careful to question his lawyers about his guilt prior to entering a plea;

·He also pleaded guilty to the offence of common law assault and does not resile from that plea today. The plea was, on his own account, properly entered. This gives me further comfort that he was cognisant of the consequences of entering a plea of guilty. 

71Reliance is also placed upon the fact that the Applicant did not sign a document confirming his instructions to plead guilty. It is submitted on his behalf that this may be a factor which affects the integrity of the plea. I allow for the possibility that the failure to “sign up” an accused in this way might in some circumstances be a significant issue in resolving a change of plea application.  But the absence of such a document does not preclude a finding that the Applicant made an informed decision to plead guilty and thereby accept his guilt. I am satisfied that he did on the available evidence. 

72There are two other matters raised in the evidence of the Applicant which I will deal with out of a sense of completeness:

·First, he said under cross-examination that he was ‘unconscious’ when he was on the premises. The CCTV would show this, he said. He said the CCTV shows that he is not guilty.

·Second, when he said in his affidavit that his lawyers did not put evidence of an earlier incident before the court he was referring to the CCTV footage of his earlier visit to the Campbellfield premises on the day in question. He said his lawyers have now been given this.

73These assertions distract from the application.  Neither was pursued by his counsel as a basis for changing the Applicant’s plea. Neither was relied upon in support of the application. I would also add that the ‘unconscious’ claim is what the Applicant asserted in one of his interviews with the police. Cleary he concluded, prior to entering a plea, not to pursue this defence. Indeed he maintained on this application that he was guilty of the common law assault. The entry and maintenance of that plea to the common law assault is obviously inconsistent with the claim that he was ‘unconscious’.  As for the late disclosure of the CCTV footage of the earlier incident, the Applicant never explained the significance of this to this application. Further his counsel explicitly disavowed any reliance upon it for the purposes of this application.  

74The Applicant has failed to persuade me that any of the above circumstances indicate that his guilty plea was attributable to a circumstance other than a consciousness by him of his guilt.

Pleading guilty for a technical sentencing advantage

75Mr Sala gave evidence that he gave advice to the Applicant at the committal hearing that the likely outcome would be either that he would receive a head sentence with a short non-parole period (being a few months in addition to time served up until the plea hearing), or that he would receive a CCO in combination with a term of imprisonment equivalent to time already served. The advice was given upon the basis that he would remain in custody up until the plea. He was in fact bailed at the committal so his time served did not change.  I note that as at the committal hearing (16 May 2016) and at the time of the plea (27 July 2016) the Applicant had already served a little under 7 months.

76I indicated at the plea hearing that a CCO (with time served) was unrealistic, and that a further period of imprisonment would be required.  I effectively indicated that a head sentence and non-parole period would be required. Mr Sala’s advice was, however, appropriately qualified advice. No guarantee was given as to outcome.  Mr Sala said that he advised the Applicant that these options were likely (rather than certain) and that ultimately it was a matter for the Court. Indeed Ms Nehma gave evidence that at the conference on 20 July 2016 Mr Sala advised that while the option of a CCO with time served was within the range, so too was a term of imprisonment, and further that it was a question for the court and he could not give a definitive answer.

77In his evidence the Applicant at one point said that he understood the advice to be that the worst case was that the sentence would require him to serve an extra two (or three) months. Though not clear, I assume he means an extra two (or three) months over and above the 7 months he had already served.  He took it as a guarantee. While I have not sentenced the Applicant, I deal with this application upon the basis that any disposition will require the Applicant to serve, by way of a non-parole period, a greater period of time than this.

78It has been made clear to me that the Applicant’s case is not that erroneous legal advice was given but that it was misunderstood by the Applicant and that this misapprehension was operative at the time he entered his plea.

79Further, the Applicant does not contend that this misapprehension alone justifies leave being given to withdraw his plea.

80Rather the Applicant contended that he entered the plea of guilty to secure a technical sentencing advantage whilst believing himself to be not guilty. There are thus two elements to the application.  The basis of the application is to be found in Kumar v The Queen(No 2)[5] as interpreted and summarised by Redlich Weston[6]. This analysis stands for the proposition that the fact that the plea might have been motivated by an expectation of sentencing advantage will not deprive it of the quality of a true admission of guilt unless it can be shown that the accused did not believe himself to be guilty at the time of the plea.  

[5]Kumar v The Queen [2014] VSCA 102, [16(a)] [16(d)] [17].

[6]Weston (2012) 48 VR 413, 445 [109 (8)] – [109 (9)].

81I have already concluded above that the Applicant has not established that he did not, at the time of the plea, believe himself to be guilty. The Applicant has failed to establish that his guilty plea was attributable to a circumstance other than a consciousness by him of his guilt. The Applicant has not established that he did not intend to accept guilt for the offence of aggravated burglary.  This is not a case where the Applicant, believing himself to be not guilty, entered a plea of guilty to secure a technical advantage.

No triable issue

82The authorities also indicate that to impugn the integrity of the plea, whether before or after conviction, the Applicant must show an ‘issuable question of guilt’ in addition to some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the Applicant to his plea.

83Objectively viewed, there is no triable issue. There is no viable defence.  The fact that the Applicant did not steal anything or cause damage (or enter with such an intention) is no defence to the charge in question.  The possibility that he entered to restrain his son is a fanciful one and is not a viable defence on the evidence. Importantly, the Applicant does not assert today that he did not possess the relevant intention to assault upon entry. That intention renders him liable to the offence of aggravated burglary (taken in combination with the other elements, which are accepted, such as knowledge as to a person present). 

84Were it necessary to do so, I would have had no trouble being satisfied beyond reasonable doubt of the Applicant’s guilt of the aggravated burglary.

Conclusion

85For all the above reasons, the Applicant has not established there would be a miscarriage of justice if the plea was not set aside. I dismiss the application to withdraw the plea of guilty to aggravated burglary.