Georgiou v The King
[2022] VSCA 220
•18 October 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0010 |
| TERRENCE GEORGIOU | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL JA and KIDD AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 September 2022 |
| DATE OF JUDGMENT: | 18 October 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 220 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1892 (Her Honour Judge Pullen) |
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CRIMINAL LAW – Application for extension of time for leave to appeal against conviction and sentence – Applicant pleaded guilty to stalking, obtaining property by deception and possessing child pornography over five years ago – Whether applicant may be relieved of guilty pleas – No proper basis for undermining guilty pleas – By pleading guilty, applicant admitted to all elements of offences – Insufficient explanation for delay in bringing application for leave to appeal – Application for extension of time refused.
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Mr C B Boyce KC with Ms B Goding | ||
Solicitors | |||
| Applicant: | -- | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
KIDD AJA:
On 14 November 2016 the applicant was convicted on his plea of guilty to three charges. The first charge concerned stalking, the second obtaining property by deception and the third involved possession of child pornography. On 7 December 2022 the applicant was sentenced to a total effective sentence of 3 years and 8 months’ imprisonment. A non-parole period of 2 years and 4 months was set. The structure of the sentence imposed by the sentencing judge is reflected in the following table:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Stalking 10 years 3 years Base 2 Obtaining Property by Deception 10 years 10 months 5 months 3 Possessing Child Pornography 5 years 7 months Base Total Effective Sentence: 3 years and 8 months Non-Parole Period: 2 years and 4 months Pre-sentence Detention Declared: 413 days Section 6AAA Statement: Total Effective Sentence 6 years
Non Parole-Period 4 years and 6 months
Other Relevant Orders:
Orders for forfeiture and destruction of exhibits
The applicant now applies to this court for an extension of time in which to bring an application for leave to appeal against both his conviction and sentence. The application is more than five years out of time. The relevant principles as to when an application for extension of time will be entertained were summarised in Madafferi v The Queen as follows:
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay — and the reasons for it — and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.[1]
[1][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations omitted).
The reasons for sentence
The plea in mitigation of sentence proceeded on the basis of an agreed prosecution summary. The applicant was represented by experienced counsel.
The judge summarised the facts. The victim of the stalking offence was a woman of approximately 37 years of age who formed a friendship through ballroom dancing classes with the applicant and his wife. Between March 2013 and September 2013 the applicant sent the complainant a series of emails declaring feelings for her and these developed into further emails declaring love for the complainant in a tone which became increasingly aggressive.
This contact led to the complainant obtaining an intervention order initially on an interim basis and then in February 2014 on a final basis. In February 2015, just before the expiration of the intervention order, the complainant found what appeared to be a camera installed in the ducted heating vent above her bed. Although this was an imitation camera, police subsequently found a large body of electronic records and equipment which showed the extent to which the applicant had been stalking the complainant. These included photographs and other records. Analysis conducted by police revealed 65 occasions when the applicant had breached the intervention order over a period of 12 months which, as the judge commented, demonstrated an obsession with the complainant. The applicant’s behaviour included taking videos and photographs of the complainant and her home, and attending at her home and business address on at least 18 occasions.
In relation to charge three, analysis of the devices seized by police revealed 40 images identified as Child Exploitation Material spread across three different devices. The judge viewed the images and described them in brief terms, some of which showed penetration of a child exhibiting clear signs of distress.
The judge described the stalking offence as occurring over a very significant period of time on multiple occasions, often associated with a sexual connotation. The judge noted that it was not surprising the victim was in fear even though some of the activity was unknown to her until the police investigation. The judge concluded that the offending was to a ‘mid to high end of gravity’.[2]
[2]DPP v Georgiou [2016] VCC 1892, [48] (‘Reasons’).
In relation to the child pornography offence, the sentencing judge noted that the images had been downloaded on to a mobile telephone and also on to a laptop and that the applicant had not told the truth to the psychiatrist in relation to his awareness of the pornography.
The judge took into account the plea of guilty and accepted that there was some remorse. The judge took into account the applicant’s personal background on the contents of a psychiatric report tendered on his behalf. In that report, the psychiatrist, Dr Walton, referred to the applicant’s ‘striking psychological immaturity’.
Proposed grounds
Conviction
It can be understood from the applicant’s voluminous material that he seeks to appeal his conviction on the grounds that:
(a)the evidence did not establish the offence of stalking;
(b)there is fresh evidence to show that he was not knowingly in possession of child pornography on his devices;
(c)he has a defence to the charge of obtaining property by deception (namely a claim of legal right which negated the element of dishonesty); and
(d)the incompetence of his legal representation.
It is sufficient to state our conclusion that the proposed grounds are bereft of merit.
In order to succeed on an appeal against conviction after a plea of guilty the applicant must demonstrate that there has been a substantial miscarriage of justice.[3]
[3]Gurappaji v The Queen [2018] VSCA 187 (Priest, Beach and Weinberg JJA).
By a plea of guilty a person in possession of all the facts is normally taken to have made an admission of each of the necessary legal elements of the offence.[4]
[4]Ibid [9] (Priest, Beach and Weinberg JJA). See also Keenan v The Queen [2020] VSCA 105 (Priest and Niall JJA) (‘Keenan’).
Broadly, a miscarriage of justice may be established where:
(a)the appellant did not appreciate the nature of the charge, or did not intend to admit that they were guilty of it; or
(b)upon the admitted facts they could not in law have been convicted of the offence charged.[5]
[5]Ibid [6] (Priest, Beach and Weinberg JJA). See also Keenan [2020] VSCA 105 (Priest and Niall JJA).
These categories are not exhaustive ― the critical matter is whether there has been a miscarriage of justice.
In our view, there is no reason to doubt that the applicant entered a genuine plea of guilty to the charges and there has been no miscarriage of justice.
Turning first to the offence of stalking.
The agreed prosecution summary which was read to the court contains ample material to establish the offence of stalking. The conduct encompassed by the charge covered a range of conduct, including emails, texts, posts on social media, surveillance, loitering, drive-bys, visits to the home and business premises of the victim, the invasion of the victim’s home, and the taking and retention of photos and videos. It covered numerous acts on multiple occasions over a very lengthy period.
The stalking conduct was sustained and persistent, and caused the victim great distress. As a result, she had surveillance cameras installed at her house. She sought and obtained intervention orders from the Magistrates’ Court against the applicant. The victim impact statement tendered at the plea confirms the effect the applicant’s behaviour had upon her. A letter of apology written by the applicant was tendered of his behalf, acknowledging the harm he had caused the victim.
There was also a wealth of evidence which squarely placed the applicant upon notice that his conduct was unwelcome and was harming the victim. Most of the stalking conduct occurred after the applicant was told by the victim that she did not want to speak with him or have contact with him. He was aware of the intervention orders made against him at her instigation. There is explicit evidence exposing the applicant’s state of mind. The prosecution opening noted that the applicant was heard to say that he wished to visit the vicinity of the victim’s home to ‘piss her off and to show that she couldn’t get rid of [him] easily.’ Some of the stalking behaviour was quite obviously calculated to harass.
In his filed materials in this Court, the applicant essentially seeks to vitiate his plea upon the grounds that the victim could not have been aware of the full extent of the applicant’s conduct encompassed by the stalking charge (such as the taking and retention of hundreds of videos and photos of the victim and her property).
The argument is misconceived. The offence of stalking does not depend upon proof of the victim’s knowledge of all the stalking conduct that comprises the course of conduct. In order to commit the offence, the offender must have intentionally engaged in a course of conduct comprising the relevant stalking conduct. Additionally, it must be established that the person:
(i)committed that course of conduct with the intention of causing mental harm to the victim or of arousing apprehension or fear in the victim for her own safety (Crimes Act 1958, s 21A(2)); or
(ii)knew that engaging in the course of conduct would be likely to cause such harm or arouse such apprehension or fear (s 21A(3)(a)); or
(iii)ought to have understood that engaging in the course of conduct would be likely to cause such harm or arouse such apprehension or fear, and actually did have that result (s 21A(3)(b)).
There are thus three alternative bases for liability.
As is apparent, the first and second alternative bases for liability (ss 21A(2) and 21A(3)(a)) are solely focused upon the state of mind of the offender. They do not require proof of knowledge of the victim of the stalking behaviour. Nor is proof of psychological impact required.
Even under the third alternative basis for liability (s 21A(3)(b)), there is no requirement that the victim must be aware of every act said to amount to the stalking or the entirety of the conduct said to make up the course of conduct. What matters is that the course of conduct (overall) caused mental harm to the victim or aroused apprehension or fear in the victim for her own safety. It matters not that the victim might have been unaware of some of the conduct.
In this case there was cogent evidence in the agreed prosecution opening supporting all three alternative bases for liability. Given the evidence we have summarised above, the emotional impact of the applicant’s behaviour upon the victim must have been obvious to the applicant. It is also clear that profound emotional harm was caused to the victim. Pointing, as the applicant does, to a body of stalking conduct which could not have been known at the time to the victim ignores the abundance of intrusive stalking actions in this case which were both known to the victim and which were psychologically harmful to her (in the manner contemplated by s 21A).
On any view, the evidence inescapably established either that the applicant knew that engaging in the course of conduct would be likely to cause mental harm or arouse apprehension or fear in the victim, or alternatively that he ought to have understood this and that it did actually have that result on the victim.
For completeness, it should be said that at the plea hearing the applicant’s counsel was alive to the issue that the victim must have been unaware of some of the stalking conduct. He addressed this issue with the judge. The applicant’s counsel rightly acknowledged that this was not a matter which went to liability for the offence of stalking. Rather, according to the submission of counsel at the plea, it bore upon the assessment to be made of the gravity of the offending, noting that some of the stalking behaviour did not cause harm or apprehension to the victim at the time as it was unknown to her. The attention that this issue received from the applicant’s counsel on the plea suggests that this was a matter considered by the applicant with his counsel prior to entering a plea of guilty.
What we have said above is also an answer to the purported new or fresh evidence which the applicant seeks to rely upon in this court. Some of this evidence post-dates the plea hearing and includes (what the applicant claims to be) admissions made by the informant in subsequent intervention order proceedings concerning the applicant and the victim. Taken at face value, none of this material assists the applicant. It merely confirms what was common ground at the time the plea was entered by the applicant, namely that there was a body of stalking behaviour which was unknown to the victim at the time it occurred. None of it alters the fact that the course of conduct of stalking (to which the applicant pleaded guilty) also comprised numerous stalking actions known to the victim at the time, which significantly impacted upon her. None of the material raises a question of the applicant’s guilt.
We see no justification for relieving the applicant of his plea of guilty to stalking.
We turn now to the plea of guilty entered by the applicant in relation to the possession of child pornography material.
The applicant now contends in this Court that there is new or fresh evidence that he was unaware of the existence of the child pornography material located on his devices. While he accepts he had physical possession or custody of the material, the submission was that he had no knowledge of its existence at the time.
There is no proper basis to undermine the applicant’s plea to the possession of the child pornography charge.
By his plea, the applicant admitted to being in possession of the child pornography material found on his computer and telephone. This included an admission as to his knowledge or awareness of its existence and as to the nature of the material. This alone is sufficient to answer the applicant’s claim advanced in this Court that he had no knowledge of the nature of the material.
Further, the fact is the material was located across several devices owned and used by the applicant, which were in or under his exclusive custody and control. Evidence was also outlined in the prosecution opening that the applicant had accessed this child pornography material on his devices on multiple occasions. This evidence was not contested by him at the plea.
Additional compelling support for the genuineness of the plea for the child pornography possession charge can be found in what was said on the applicant’s behalf at the plea hearing itself. Counsel for the applicant advanced arguments relating to the provenance of the child pornography material in an endeavour to provide an explanation for how the material came to be located on the applicant’s devices. These arguments involved acceptance that the material was located on the applicant’s devices and acceptance of his knowledge and awareness of the nature of the material. Importantly this submission was made upon the applicant’s explicit instructions. His counsel at the plea hearing said the following to the judge:
I’ve sought written instructions, I’ve obtained written instructions ― or signed instructions I should say ― that he knowingly possessed child pornography and he pleads on that basis. The tenor of what he conveyed to the police in the record of interview it would seem was inconsistent with the plea as well on this topic, but he says ‘I want to plead guilty, I will plead guilty. I knowingly possessed child pornography’.[6]
[6]Emphasis added.
The prosecution opening at the plea outlined that the applicant had accessed the pornography on multiple occasions. The applicant handed up a bundle of documents during the oral hearing which he contended showed he in fact did not, and could not have, accessed the child pornographic material. The documents’ provenance is unclear, and their contents vague and confusing. It must not be forgotten that the applicant pleaded guilty and in doing so admitted his knowledge of the presence of the child pornographic material on his devices. An admission of knowledge constitutes the most cogent evidence of a mental element. An equivocal document of the kind handed up falls well short of calling into question the validity of that admission.
There is also no merit to the applicant’s case that there has been a substantial miscarriage of justice in relation to his plea (and conviction) for charge 2, obtaining property by deception.
As with the other charges, the applicant, through his plea, admitted each of the elements of this charge. As the respondent has submitted, the Diversion paperwork obtained by him was ‘property’. He obtained the papers by falsely representing that he was the complainant. He practised a deception. There was a clear evidential basis to support the charge.
It emerged at the oral hearing of this application that the applicant’s central argument is that he was not guilty of this offence because he had a legal claim of right to obtain the Diversion document. We take this submission to be that this negates the element of ‘dishonesty’ under this offence. Again, this argument is answered principally by the entry of his plea of guilty. In entering that plea, the applicant admitted all the elements of the offence, including that he obtained the property in question dishonestly. By pleading guilty, he accepted that he did not believe that, in all of the circumstances, he had a legal right to obtain the property. Even on his account, he had been denied access to the document by court staff. There is a cogent evidentiary inference available that he practised the deception precisely because he did not believe he had a legal claim of right to obtain the document.
No plausible basis has been identified that would indicate any incompetence on the part of his legal advisers that would undermine the genuineness of his claim. The plea hearing was conducted over two days. It is apparent that the applicant’s counsel was careful, thorough and effective in his representation. It can be deduced from the transcript that the applicant’s legal advisers had exhaustively canvassed with the applicant all the issues relevant to the pleas of guilty which he entered. We infer that he was informed of the relevant facts and the law, and made a considered decision to enter his pleas of guilty. The applicant now seeks to have these issues re-agitated, without any good reason.
At the oral hearing of this application, the applicant submitted that he entered his pleas of guilty partly due to family reasons, and whilst under other psychological pressures. For example, he made reference to the concerns which he held that if he did not plead guilty, his mother would die of stress. Even accepting this, the applicant’s submissions in this regard would be answered by some observations recently made by this Court in Keenan:
A person may enter a plea of guilty even though they do not believe that they are guilty of the offence for pragmatic reasons, such as, to avoid worry, inconvenience or expense, avoid publicity, to protect family or friends or in the hope of obtaining a more lenient sentence. But a plea entered on such a basis will not be set aside unless a miscarriage of justice is shown. Advice, even strong advice to plead guilty, does not undermine the plea. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.[7]
[7][2020] VSCA 105, [52] (Priest and Niall JJA).
To conclude, the guilty pleas are supported by a plethora of evidence. They were entered with the benefit of competent legal advice and representation and were made after due consideration. There is no reasonable possibility that the applicant failed to appreciate the nature of the charges or did not intend to admit his guilt to them.
It is apparent from what we have said that none of the documentation sought to be relied upon by the applicant, at face value, raises a realistic possibility that a miscarriage of justice has occurred in relation to his conviction on charges one, two or three. Having resolved this fundamental question, none of this material is admissible on this application.[8]
[8]R vKucma (2005) 11 VR 472; [2005] VSCA 58.
Importantly, the applicant must overcome the inordinate delay in commencing proceedings. The explanations which he has proffered do not individually or collectively account for a delay of some five years. In the intervening period evidence which was forfeited pursuant to order has been destroyed. This itself provides a powerful reason to refuse an extension of time. Any extension of time must be fair to both sides.
There is no proper basis to extend the time to allow an application for leave to appeal against conviction. Further, given the grounds are without merit any extension would be futile.
Sentence
The applicant would seek to overturn the sentence imposed on him on the basis that it was manifestly excessive and on the ground of bias on the part of the sentencing judge.
What we have said above in relation to the application for extension of time applies with equal force to the application touching sentence. It is also relevant that the sentence has been served.
We would add that having reviewed the very careful reasons for sentence given by the judge when she came to sentence the applicant, there is no reasonable prospect that the applicant would succeed in any appeal against sentence.
Both the stalking offence and the child pornography offence were serious. The former occurred over an extended period of time, was constituted by a number of different acts including the taking and retention of photographs and video and involved a serious invasion of the complainant’s security and privacy. The apparently sexual motivation of the applicant’s conduct added to the objective gravity of the offending.
The judge described the contents of the child pornography in terms which patently demonstrated the seriousness of the offending. In order to establish manifest excess the applicant would have to show that the sentence was wholly outside the available range. This he is entirely unable to do.
Further, the obtaining property by deception charge was serious. The offending involved a reasonably sophisticated deception of a public institution ― a court ― in order to obtain property of a sensitive nature.
Finally there is no basis for the allegation that the judge was affected by bias, either actual or reasonably apprehended. Whilst there may have been some robust exchanges between the applicant’s counsel on the plea and the sentencing judge, none of these exchanges give rise to an apprehension of bias. It is also relevant that no application for recusal was made at the time.
The application for an extension of time against conviction and against sentence must be refused.
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