Guariglia v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0821 S APCR 2009 0761
GEOFFREY GUARIGLIA	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	NETTLE and HANSEN JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2010
DATE OF JUDGMENT:	16 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 343
JUDGMENT APPEALED FROM:	R v Guariglia (Unreported, County Court of Victoria, Judge Douglas, 16 September 2008)

---

CRIMINAL LAW – Conviction – Multiple counts of burglary, theft, armed robbery, false imprisonment and weapons offences – Guilty pleas on five separate presentments – Application for extension of time to seek leave to appeal – Whether pleas resulted from improper pressure by trial judge – Judge commented on strength of prosecution case and stated that substantial discount in sentence would be given if applicant pleaded guilty – Judicial plea bargaining – Miscarriage of justice – Appeal allowed – Convictions on three presentments set aside – Retrial.

CRIMINAL LAW – Sentence – Sentences on three presentments set aside – Applicant re-sentenced to original sentences on two remaining presentments – Cumulation between presentments – Total effective sentence of four years’ imprisonment with non-parole period of three years.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue & O’Brien
For the Crown	Mr J D McArdle QC with Dr S McNicol	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal, out of time, against convictions sustained on pleading guilty to six counts of burglary, 14 counts of theft, two counts of armed robbery, three counts of being a prohibited person using an unregistered firearm, two counts of false imprisonment, one count of handling stolen goods and one count of attempted armed robbery. There is also an appeal against the individual sentences and orders for cumulation comprising the total effective sentence of 14 years’ imprisonment with a non-parole period of nine years.

Appeal against conviction

The court’s practice in relation to an application for leave to appeal out of time was stated in R v Davis.[1] As a rule, the court will not grant a considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed. It is also necessary for the applicant to provide a reasonably satisfactory account of his or her failure to comply with the statutory time requirements.
[1](2003) 6 VR 538, 539 (Winneke ACJ).

The principles which apply to an application for leave to appeal against conviction entered on a plea of guilty were restated in R v Coffey.[2] There are strong reasons of public policy to restrict applications for leave to appeal in such cases. The court will entertain an appeal, however, if it appears that the applicant did not appreciate the nature of the charge or did not intend to admit that he or she was guilty or if, upon the admitted facts, the applicant could not in law have been convicted of the offence charged, or if otherwise there has been a miscarriage of justice.
[2](2003) 6 VR 543, 545–6 (Callaway JA).

In this case, I consider that there has been a miscarriage of justice and I am satisfied that, because the applicant was not advised of the possibility of a miscarriage of justice until immediately before he made his application for leave to appeal out of time, the time for making the application for leave to appeal should be extended.

The facts

The applicant was born on 3 August 1971 and was aged 36 years at the time of the alleged offending. He had 65 prior convictions, including prior convictions for obtaining property by deception, theft, burglary, traffic offences, drug offences, assault and two counts of culpable driving.

On 11 December 2007, Presentment T02741976 was filed preferring the following counts against him:

· one count of burglary (Count 3);

· five counts of theft (Counts 1, 4, 5, 6 and 7);

· one count of handling stolen goods (Count 2).

The applicant pleaded guilty to those offences at the earliest opportunity (at the conclusion of the committal hearing on 13 February 2007) and he also pleaded guilty to 10 summary offences of fraudulently alter or use a vehicle licence plate (three charges); driving whilst disqualified (six charges); and assault with a weapon (one charge).

On 7 April 2008, the applicant and one Leo Dinelli stood trial on Presentment C0605011A.1 on five counts relating to an armed robbery of a Bi-Lo Supermarket. During the trial, Dinelli pleaded guilty but the applicant maintained his plea of not guilty. At the conclusion of the trial on 1 May 2008, the applicant was acquitted of all five counts.

Subsequently, the applicant was arraigned on Presentment U00394627.4 on one count of burglary and one count of theft at Torque Tyres, one count of armed robbery and two counts of false imprisonment of employees of City Hi-Fi, one count of theft and one count of armed robbery at a TAB at Niddrie, one count of theft and one count of conspiracy to commit an armed robbery at Montrose and one count of attempted armed robbery at Diggers Rest. On 16 May 2008, he pleaded guilty to the counts of burglary and theft at Torque Tyres. The Crown thereafter filed over two new presentments: Presentment U00394627.4, which comprised the counts of burglary and theft at Torque Tyres (to which the applicant pleaded guilty); and Presentment U00394627.3 which comprised the remaining counts (to which the applicant maintained his plea of not guilty).

The applicant’s trial on Presentment U00394627.3 began the same day. As with the earlier trial on Presentment C0605011A.1, the Crown relied on evidence of Peter Reid, Scott O’Dwyer, James Chaanine and Shauna O’Brien, who were alleged to be the applicant’s co-offenders. They had earlier pleaded guilty and been sentenced to terms of imprisonment. Reid gave evidence implicating the applicant in Counts 4, 5, 6 and 7; O’Dwyer and Chaanine gave evidence implicating the applicant in all counts; and O’Brien, who was the applicant’s de facto and alleged co-offender in relation to the City Hi-Fi offending, gave evidence in relation to those alleged offences and of admissions which she said the applicant had made in relation to other counts.

Two incidents occurred in the course of the trial which led the judge discharge to the jury before verdict. The first happened after the judge had ruled that the Crown could lead evidence that the applicant was found in possession of an under and over shotgun. Subsequently, Reid gave evidence that the weapon used in the offences was not an under and over shotgun but a side by side shotgun. That was also what O’Dwyer had said in his deposition, to which the judge was not referred at the time of ruling. The second incident occurred when one of the witnesses gave evidence that the applicant had been in gaol. The judge discharged the jury on Tuesday 27 May 2008.

Having so discharged the jury, the judge immediately addressed herself to defence counsel and the applicant as follows:

HER HONOUR: All right. Now [addressing herself to Defence Counsel], I just want to put a couple of things to you.
DEFENCE COUNSEL: Yes, your Honour.
HER HONOUR: [Addressing herself to the applicant] I want you to listen, Mr Guariglia.
APPLICANT: Yes.
HER HONOUR: I don’t really talk to accused, but I always like to make clear what I’m saying to the barrister clear to you. In this trial, there were a number of witnesses. There was Mr Reid and Ms O’Brien – who we’ve only had a little bit of evidence from – and the two young fellows. I don’t decide if anyone is guilty or not guilty, my role is to be the umpire, if you like, and decide the law. From where I’m sitting, they were really good witnesses. From where I’m sitting – and I don’t decide it, but I’m just giving you my view, which you can use or not use.
I thought it was a very strong prosecution case.
Now I want the Crown and the defence to talk about this and other trials, because I’ll tell you what, Mr Williams. If Mr Guariglia decides to plead guilty to this last trial, this is the third – otherwise, it will be the third trial and there will be people – the expense of getting those three serving prisoners giving evidence – and it’s clear to me, the stress they’re undergoing, and whatever one thinks of Peter Reid, he’s undergoing an enormous amount of stress, and the young fellows.
Your client would get a substantial discount – a substantial discount, because it’s not just showing remorse – or it could be showing remorse. It’s the public policy for me – as the judge that sat through two – would be that you would get more than the usual discount for pleading guilty. Your client is not an old man but he’s not a young man, and I reckon that just looking at it from my perspective, as I said, it was a very strong Crown case, and the sentence you would get on trial – which is the correct sentence – would be a substantial one.
When you plead guilty, the law is you must get a reduction, and as I say, having seen what a third trial would do, I know the time and the effort and the expense, and I’m willing to say now, I would give a large discount. Now, your client has already got seven counts he’s going to plead guilty to in that last one – which are the burglaries and thefts – as well as the Torque Tyres. There’s also that Presentment – counsel will have to assist me here. I don’t know it particularly well, but it’s 16 counts, and it may well be one or two trials, and it’s Shauna O’Brien, the accused and Peter Reid and son. Is that right?
DEFENCE COUNSEL: That’s right.
HER HONOUR: I reckon there’s got to be some discussions about it. Now Mr Guariglia, you have every right to stand trial and to test the Crown case, but at this stage, I just think it’s probably in everyone’s interest to talk. If nothing happens, nothing happens. But it’s your client who is going to be doing the time not me.
DEFENCE COUNSEL: Right.
HER HONOUR: Or not anyone else. So it’s in his personal interest to think hard, and perhaps the Crown can think also with some negotiations, in relation to that 16 count Presentment. I’d like everyone to talk tomorrow about all this.
DEFENCE COUNSEL: Yes, your Honour.
HER HONOUR: We can have a look at what’s going to happen, because I think we’ve got to clear Mr Guariglia’s matters before I get to Mr Dinelli. I go on holidays in three weeks. Yes Mr Guariglia.
APPLICANT: Your Honour, can I get a couple of days break. I’ve been trying to see a doctor for the last month.

A discussion followed between the judge and defence counsel as to the need for the applicant to seek medical attention for a kidney stone problem, after which the judge again addressed counsel and the applicant as to the desirability of the applicant changing his plea:

HER HONOUR: But I think you’ve got to think about it sooner rather than later, Mr Guariglia, you know. You’ve got to make a decision about all this, and the Crown may well give and take, too, Okay? Are you in pain?
APPLICANT: Only at night-time sometimes I – a bit of blood and that’s it, you know what I mean.
HER HONOUR: I’m not trying to intrude into your health, but what I think – and it’s hard, Mr Williams, for your client. I’ve sprung this on him but I think he’s entitled obviously to have medical help. But I think also he’s got to bite the bullet and think about all of this. If he decides to go to trial, of course he can.
But I think there‘s got to be – as I tell juries – you’ve got to weigh up everything, see everyone else’s point of view and come to a conclusion because I’m sure that the moment there’s a resolution, however it comes about, everyone’s stress levels will go down and that’s not a bad thing if you’ve got health problems. So when do you say you’ll be able to talk to your client and the Crown, Mr Williams?
DEFENCE COUNSEL: I can commence discussions immediately.
HER HONOUR: But you’ve got to talk to your client.
DEFENCE COUNSEL: Yes, of course, that’s right, and I could - - -
HER HONOUR: What’s today? Would Friday be too soon to come back and tell me? Is that okay with you, Mr Guariglia? That sound fair?
APPLICANT: Yes ma’am.

HER HONOUR: Do you want to have a quick talk to your client? Thursday or Friday?
DEFENCE COUNSEL: Yes. Thank you, your Honour. Friday, would be suitable for Mr Guariglia.
HER HONOUR: Okay, and when I said a substantial discount in relation to this trial, in the circumstances the whole package because of what’s happened, okay?
DEFENCE COUNSEL: I took it that way, your Honour, yes. I’m sure my client did as well and - - -
HER HONOUR: So it’s a hard decision to make I know, and as I say, Mr Guariglia, I don’t want this to be pressure. I just want to be perhaps telling you what’s on my mind and we’ll see how we go. We’ll adjourn this case until – for mention on Friday and then you’ll know what the situation is, then we can look at the program.
DEFENCE COUNSEL: Yes, your Honour, thank you.

In his affidavit sworn 10 June 2010 in support of this application, the applicant deposes that, a short time after court adjourned on 27 May 2008, defence counsel came down to see him in the cells and told him that he had spoken to the prosecution and that they had agreed that, if the applicant pleaded guilty to certain charges, the armed robbery allegation concerning Vinnie’s Fruit Store would not be proceeded with and some summary offences would also be withdrawn. According to the applicant, defence counsel also said that the judge had offered the applicant a substantial discount and that it was good for the applicant. The applicant said that he asked defence counsel what he was looking at in terms of the amount of time he would spend in prison if he pleaded guilty, and defence counsel said that, if he accepted the judge’s offer, he would most likely receive a sentence of around six years with a non-parole period of four years. The applicant also said that he asked defence counsel to ask the judge for an indication of what sentence she would impose, but that defence counsel replied that the judge could not tell the applicant what the sentence would be. The applicant says that defence counsel added, however, that it was a good deal and that the applicant should take it.

To a substantial extent, that evidence is corroborated by an affidavit sworn by defence counsel on 5 October 2010. The only significant difference is that counsel says he did not advise that the likely head sentence would be as low as six years or that the non-parole period would be as low as four years. Importantly, defence counsel deposes that, although the judge prefaced her remarks on 27 May 2008 with the observation that she did not really talk to accused, defence counsel felt that her Honour was clearly directing her remarks to the applicant as she looked over him to the applicant in the dock, and particularly so after the applicant had spoken directly to the judge asking for a ‘couple of days break’ to see a doctor. It was then that her Honour said to the applicant that he had to bite the bullet and make a decision.

In his affidavit of 10 June 2010, the applicant further deposes that, after the judge so advised him, he felt backed into a corner. He thought that, if he did not take the offer, he was going to get a long sentence. He felt under great pressure and stressed that he could not really see a way out. The judge had said that the prosecution case was strong. He did not cope well with pressure. Thus when the judge made the comments she did about the substantial discount, the applicant felt that he had not choice; if he did not accept the Crown’s offer he would get a longer sentence for going on with the trials.

To a substantial extent that evidence is also corroborated by defence counsel’s affidavit of 5 October 2010. Defence counsel says that, although the applicant took until Friday 30 May 2008 to make a decision and that, in the interregnum, defence counsel gave the applicant detailed advice and took instructions in writing signed by the applicant, defence counsel was conscious that the judge’s comments may have caused the applicant to feel under pressure, that the applicant appeared to find the process of the trials extremely taxing, and that he did appear to be under great stress throughout the proceedings.

Significantly, the applicant’s written instructions to defence counsel to enter the plea of guilty included this statement:

My decision to plead guilty has been made following her Honour Judge Douglas indicating to me that she would give me a ‘substantial discount’ if I were to plead guilty and having run two aborted trials in respect of Presentment Number U00394627.

And this:
I confirm that [defence counsel] has advised me of the following specific matters…
…
(ii) That while there is a slim prospect of me successfully defending the charges contained in presentment U00394627.3, I would receive a more severe sentence if I am found guilty by a jury than if I plead guilty now, because I would not receive the ‘substantial discount’ to which Judge Douglas referred in court on the 27^th of May 2008…

On Friday 30 May 2008, the Crown filed over Presentment U00222737.3 preferring the following counts:

· four counts of burglary (Counts 1, 3, 5, 11);

· seven counts of theft (Counts 2, 4, 6, 7, 10, 12, 13);

· one count of armed robbery (Count 8);

· one count of being a prohibited person using an unregistered firearm (Count 9),

and Presentment U00394627.5 preferring the following counts:

· two counts of armed robbery (Counts 1 and 5);

· one count of attempted armed robbery (Count 6);

· - two counts of false imprisonment (Counts 2 and 3);

· one count of theft (Count 4).

On the same day, the applicant was re-arraigned on Presentments U00222737.3; U00394627.4; U00394627.5; U00394627.2 and T02741976 and pleaded guilty to all counts thereby preferred.

On 15 July 2008, the judge heard a plea in mitigation of penalty and on 16 September 2008 her Honour sentenced the applicant to a total effective sentence of 14 years’ imprisonment with a non-parole period of nine years.

In his affidavit of 10 June 2010, the applicant deposes that he telephoned his solicitor on the day following the plea and told her that he did not feel right pleading guilty to crimes which he did not commit. According to him, the solicitor advised him that it was too late to change his plea, and that it would be ‘opening up a can of worms’ if he attempted to change his plea, and that he was in good hands and that everything would be okay. In the event, it was not until 8 April 2010, after a copy of the transcript of the proceedings had been obtained for the purposes of his appeal against sentence, that he was first advised that it was possible to apply to change his plea.

There is no supporting affidavit from the solicitor to that effect. But we were told without objection that the applicant’s affidavit was served on the solicitor in order to enable her to contradict it, and that there had been no response. In those circumstances, and since the respondent did not seek to cross-examine the applicant on his affidavit, I am disposed to accept what he says.

Counsel’s submissions

The sole ground of appeal against conviction is that the applicant changed his plea from not guilty to guilty as a result of improper pressure exerted by the judge.

Counsel for the applicant contended that the judge did so by first telling the applicant that she considered that the Crown witnesses ‘were really good witnesses’ and that the Crown case was ‘a very strong case’, and then offering the applicant the inducement that, if he pleaded guilty, he would receive ‘a substantial discount’, ‘a large discount’, ‘more than the usual discount for pleading guilty’. Counsel relied on the decision of the English Court of Appeal in R v Turner[3] and that of the New South Wales Court of Criminal Appeal in KCH[4] in support of his submission.
[3][1970] 2 QB 321.
[4](2001) 124 A Crim R 233.

In Turner, a plea of guilty was set aside where the prisoner wrongly believed that counsel’s views as to the likelihood of the prisoner receiving a non-custodial sentence in the event of a plea, but a custodial sentence on conviction following a fully contested trial, were in fact views expressed by the trial judge. Lord Parker CJ, who delivered the judgment of the Court of Appeal said that:

True, as I have said, he was warned that the choice was his, but once he felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter.[5]

[5][1970] 2 QB 321, 326.

In KCH a conviction following a plea of guilty to an alternative count of aggravated indecent assault on a child was set aside because the plea was found to be materially influenced by defence counsel’s advice to the accused that, in the judge’s view, it was possible that the accused would be convicted on a more serious charge of sexual intercourse with the child and hence should plead guilty to the lesser alternative charge. Ipp AJA,[6] who delivered the leading judgement, held that a decision to plead guilty is not made freely and voluntarily if procured by improper pressure and that a decision to enter a plea of guilty will be regarded as procured by improper pressure when a trial judge gives advice to an accused[7] as to the likelihood of the accused being convicted and the desirability of the accused pleading guilty. His Honour reasoned that:

The effect of advice as to the prospects of a defendant being found guilty, given by a person cloaked with the full power of judicial office, who is presumed to have deep knowledge and understanding of the law and to be entirely neutral, is incalculable. For an accused person, whose liberty is in immediate jeopardy, advice from such a source would carry immeasurable weight and would be very difficult to resist. The ordinary consequence will be that such advice will be regarded as having overborne the free will of the defendant and the integrity of the plea of guilty will be regarded as irretrievably tainted.[8]

[6]With whom Sperling J agreed, Hulme J contra.

[7]Or, as in that case, if the accused is led to believe that the judge has so advised.

[8](2001) 124 A Crim R 233, 239 [36].

Counsel for the applicant contended that, in view of those authorities, it cannot be doubted that the trial judge’s actions in this case compromised the ability of the applicant freely to choose whether to plead guilty or not guilty and thus caused a miscarriage of justice.

Counsel for the respondent argued, to the contrary, that Turner and KCH do not accord with the law in this State. In his submission, the decision of the Court of Criminal Appeal in R v Pinhassovitch[9] and, more recently, the decision of this court in R v Holden,[10] establish that there is nothing improper in a trial judge expressing views as to the strength of a Crown case or offering an accused a substantial discount on sentence in return for pleading guilty.
[9](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and O’Bryan JJ, 7 February 1994).
[10][2009] VSCA 254.

Alternatively, counsel said, even if it were improper for the trial judge to make observations and an offer of the kind she did, a conviction entered on a plea of guilty should not be set aside unless it is established on the balance of probabilities that what the judge said so influenced the accused as to deprive him or her of a free choice as to whether to plead guilty.[11] And, in counsel’s submission, in this case it has not been established that the applicant’s decision to plead guilty was anything other than a free and informed choice made with the benefit of counsel’s advice, after taking time to consider the position, and in response to an offer by the Crown to drop some charges and not seek forfeiture of an expensive motor car of which the applicant wished his mother to have the proceeds of sale.

Pinhassovitch and Holden

[11]Meissner v The Queen (1995) 184 CLR 132, 141.

Evidently, there is some difference between Pinhassovitch and Holden on the one hand and Turner and KCH on the other. In Pinhassovitch, the Court of Criminal Appeal held that it was not a sufficient basis to set aside a conviction following a plea of guilty that defence counsel may have told the accused that the trial judge had expressed the opinion during pre-trial mentions that the case against the accused was very strong and suggested the likelihood of a considerable sentence discount if the accused pleaded guilty so as to avoid the need for a long trial. In a joint judgment, Phillips CJ and Crockett and O’Bryan JJ said:

The applicant carries the burden of persuading the Court that he has suffered a miscarriage of justice. The burden of doing so on the ground that he has entered a plea of guilty under the influence of duress exercised by his counsel is a particularly heavy one. And this is what the applicant has in essence asserted with regard to his senior counsel.
We think that, having regard to all of the evidence, the applicant did know what he was doing when he pleaded guilty and that his plea was entered as a result of a free choice on his part. Counsel is, of course, entitled, indeed required, to point out the advantage that can accrue to his client by reason of s 5(2)(b) of the Sentencing Act 1991 if he (the client) should plead guilty and if the prospect of the success of a defence made to the charge is realistically assessed as poor.
In our view the Crown case against the applicant was a strong one. Counsel's advice to the applicant as to the likelihood of a moderate, if not light, sentence being imposed if the applicant should plead guilty was entirely proper. Nor are we satisfied that counsel exerted improper pressure upon the applicant to plead guilty knowing that the applicant in fact wished to contest the charge. Still less was the applicant ‘given an instruction’ to plead guilty. The material makes it plain that the applicant was aware of the free choice he had to elect to follow either of the possible courses open to him. That freedom was not impaired by the applicant's state of health or by reason of his being ‘rushed’ by counsel to reach a decision. It is, we think, not to the point that the applicant entered a plea of not guilty on first arraignment.
At the end of the day the outcome of the applicant's application stood or fell depending upon the acceptability of an argument that rested upon the English case of R v Turner.[12] In that case it was held that, if the judge expressed the view, or the applicant for good reason thought that the judge had done so, that the accused should plead guilty, then such intervention should or could be held to have deprived the accused of the possession of a free choice. We have already referred to what passed between the judge and counsel. In all the circumstances of this case we are unable to find established the allegation that reference to the judge's opinion nullified the applicant's freedom of choice. We are quite satisfied that the applicant was well aware that the right to a trial was his to exercise whatever the judge's opinion on the matter might be. Assuming (without finding) that senior counsel did tell the applicant that the trial judge wanted the applicant to plead guilty the statement was not accompanied by any threat or prospect of an adverse consequence if the judge's wish were ignored. In the absence of any such threat or prospect the applicant, we believe, was aware of his right to opt for a trial and that, if he did so, the jury, not the judge, would determine his guilt or innocence.

[12][1970] 2 QB 321.

Likewise, in Holden, Neave JA with whom Buchanan JA and Hansen AJA agreed, held that it was not a sufficient basis to set aside a conviction following a plea of guilty that, before the plea was entered, the trial judge encouraged the Crown and the accused to have ‘meaningful discussions’ and said that ‘it seems to me that both sides would be best served if this resolved’. After referring to Ipp AJA’s judgment in KCH, Neave JA observed that:

The Victorian view is different. In Pinhassovitch an applicant sought leave to appeal from a conviction based on his guilty plea. He alleged that the plea was not freely made because his counsel exerted undue pressure on him and advised him that the judge wanted him to plead guilty. His counsel deposed that he had told the applicant that ‘the trial judge thought the case against him was very strong’. The court held that the reference to the trial judge’s opinion did not nullify the applicant’s freedom of choice and that he was ‘well aware that the right to a trial was his to exercise whatever the judge’s opinion on the matter might be’. They noted that counsel’s advice was not accompanied by any threat or consequence if the judge’s wishes were ignored.
According to Pinhassovitch the question whether a miscarriage of justice has occurred depends on a factual decision as to whether the accused freely chose to plead guilty. Contrary to the majority view in KCH, Pinhassovitch held that the fact that an accused is told that the judge considers that there is a strong case against him or her, does not necessarily deprive the accused of his or her freedom of choice.[13]

[13][2009] VSCA 254, [107]–[108].

Her Honour then went on, however, to allow for the possibility that Pinhassovitch may have been wrongly decided, observing that:

However, even if Ipp JA’s [sic] view were accepted in Victoria, I do not consider that Mr Holden has established, on the balance of probabilities, that he believed on the basis of what counsel had told him, that the judge considered he should plead guilty or that the judge would give an unfavourable jury direction if he did not do so.[14]

[14]Ibid [109].

Be that as it may, I do not construe Pinhassovitch or Holden as dictating that judicial intimations of the kind in question may not ever vitiate a plea, any more than I construe Turner or at least KCH as deciding that judicial intimations of the kind there considered will invariably vitiate a plea. It seems to me that both cases or at least KCH leave open the possibility that, despite the presumed effects of judicial influence, there may be cases where the facts show that an otherwise objectionable judicial intimation does not have a material effect.

With respect, I think that there is much to be said for Lord Parker CJ’s view that, once an accused is subjected to a trial judge’s intimation as to the advantages of pleading guilty, it is idle to suppose that the accused has a wholly free choice as to whether to plead guilty, notwithstanding that the accused may be advised by defence counsel that the choice remains one for him or her to make. I recognise, however, that the effect of Pinhassovitch was to eschew a priori presumptions of that kind in favour of a factual assessment of the effect of judicial intimations according to the evidence in the case, and I assume for present purposes that, to that extent, Pinhassovitch was correctly decided. Even so, it seems to me as a matter of objective fact that, depending on the nature and terms of a judicial intimation as to the advantages of an accused pleading guilty, it may have a profound influence on the accused’s decision to plead guilty and thus contribute materially to the entry of the plea.

I also respectfully agree with Ipp AJA’s conclusion in KCH – and I discern nothing in Pinhassovitch or Holden to the contrary – that it is not necessarily to the point that there may be more than one cause of an accused’s decision to plead guilty. If as a matter of objective fact a judicial intimation as to the advantages of pleading guilty is found to have contributed materially to an accused’s decision to plead guilty, it is appropriate to regard the decision as having been procured by improper pressure and thus as not an exercise of the accused’s free choice.

So to say is not to suggest that it is necessarily wrong for a trial judge to encourage discussions between the Crown and an accused. Depending on what is said, it may present as entirely neutral. That was the case in Holden. But, generally speaking, it is not the function of a trial judge to express views about the strength of the Crown case (except to the extent that is necessary to determine a no-case submission), still less to do so for the apparent purpose of persuading an accused of the advantages of pleading guilty. Moreover, according to long standing authority in this State, it is improper for a judge to couple the expression of such an opinion with an intimation to the accused that a plea of guilty will lead to a more lenient sentence than would be imposed on conviction following a contested trial. As the Court of Criminal Appeal said in R v Gray:[15]

We would, however, condemn as entirely improper the holding out to an accused person having a genuine defence of any inducement to plead guilty in the hope of attracting leniency in punishment … no promise can properly be held out to him.

[15][1977] VR 225, 233.

As one might expect, that is also the view which is taken in other states. In R v Lawrence[16] Moffit P held that:

A less sentence cannot be brought [sic] by a plea of guilty. It is basic that any confession of guilty to be acted upon must be voluntary and not procured by any threat or promise, such as a promise that the prisoner shall be dealt with more leniently. Likewise there can be no bargain in the criminal procedures so a plea of guilty entitled the prisoner to a less sentence: R v Gray [1977] VR 225 at 233.

To substantially the same effect, in R v Harman,[17] Andrews CJ said:
Reference was made during the course of argument before the learned sentencing judge and, indeed before us, to the desirability of inducing guilty persons to plead guilty to save time, expense etc. The advantages in a material kind of way are obvious but, in my view, we must never approach a stage where people can be induced to plead expecting some precise reduction of what would otherwise be an appropriate sentence.

[16](1980) 32 ALR 72, 107.

[17][1989] 1 Qd R 414, 419.

Of course, a plea of guilty may attract a more lenient sentence, and defence counsel may properly advise an accused of that probability. But, as has been explained, there must be no suggestion of ‘an inducement offered or approved by the court prior to the plea’.[18] A trial judge should not decide, and should be seen not to have decided, whether any or what discount is to be allowed for a plea of guilty until after the plea has been entered. To intimate in advance of a plea of guilty that such a plea would lead to a discount on sentence is an inappropriate engagement in judicial plea bargaining[19] which has the potential to dissuade an accused from exercising his or her rights, and thereby to result in a miscarriage of justice.
[18]R v Shannon [1979] 2 SASR 442, 449 [3] (King CJ).
[19]Ibid.

The judge exerted improper pressure

In this case, I consider that is what occurred. In my view, it is apparent from the passages of the transcript earlier set out that the judge set out to influence the applicant to change his plea from not guilty to guilty by advising him as to his prospects of being found guilty, and of the advantages to him of changing his plea to guilty. In the ordinary course of events, judicial persuasion of that kind would be likely to carry weight with an accused and be difficult for him or her to resist. In this case, the probability that it was so is borne out by the contents of the applicant’s and defence counsel’s unchallenged affidavits.

I do not overlook that the applicant had the benefit of defence counsel’s considered and detailed advice and that the applicant had time to think through his options. I also have no doubt that the applicant’s decision to change his plea was motivated to a large extent by the Crown’s offer to drop some counts and not seek forfeiture of the applicant’s motor car, and too by the applicant’s wish to put an end to the distress of being kept in the Exford Unit for the duration of his trial (as defence counsel said in his affidavit).

But, as I have already observed, it is not necessary for the applicant to establish that the judge’s promise of a substantial discount was the only cause of his decision to change his plea. It is sufficient if it made a material contribution to his decision. And in my view, it is plain that it did. Apart from the objective probability of it being so, it is manifest in the applicant’s written instructions to defence counsel to enter a plea of guilty that his ‘decision to plead guilty [was] made following [the trial judge] indicating to me that she would give me a ‘substantial discount’ if I were to plead guilty and having run two aborted trials in respect of Presentment Number U00394627’.

Conclusion on appeal against conviction

In the result, I conclude that the applicant’s plea of guilty was procured by improper pressure, which had a material effect on his decision to change his plea to guilty, and for that reason his plea of guilty was not an exercise of free choice. Consequently, I would allow the appeal, quash the convictions the subject of Presentments U00222737.3; U00394627.5; and U00394627.2, set aside the sentences passed thereon, and order that a new trial of those counts be had.

Appeal against sentence

Counsel for the applicant informed the court that, if the application for leave to appeal against conviction were successful, he would not seek to disturb the sentences passed on the counts the subject of Presentments U00394627.4 and T02741976 and the 10 summary charges to which the applicant was prepared to plead guilty from the outset. Accordingly, I would confirm the individual sentences passed below on the counts the subject of Presentments U00394627.4 and T02741976, and the orders for cumulation made in respect of those individual sentences, and thus the total sentences imposed in respect of those two presentments of two years and three and a half years’ imprisonment respectively. I would order that six months of the total sentence imposed on Presentment U00394627.4 be served cumulatively with the total sentence imposed on Presentment T02741976 making a total sentence on those two presentments of four years’ imprisonment. I would also confirm the individual sentences passed below on each of the summary charges numbered 3, 4, 5, 6, 7, 9, 18, 19, 23 and 25 and order that they be served concurrently with the total sentence passed on the counts the subject of Presentments U00394627.4 and T02741976. The total effective sentence would, therefore, be four years’ imprisonment, and I would set a non-parole period of three years.

I would declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for the applicant’s plea of guilty to the counts the subject of Presentments U00394627.4 and T02741976 and the 10 summary charges, I would have sentenced him thereon to individual sentences and made orders for cumulation resulting in a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and nine months.

Finally, I would confirm the orders made below to cancel the applicant’s driver’s licence and disqualify him from obtaining another driver’s licence for a period of five years.

HANSEN JA:

I agree with the conclusions of Nettle JA stated at [42] above, generally with his reasons, and with the orders that he proposes. I add only that, given the conclusion in the present case is clear on the facts, I express no view on such differences as there may be between Turner and KCH on the one hand, and Pinhassovitch and Holden on the other.

ROSS AJA:

Introduction

On 30 May 2008 the applicant pleaded guilty to six counts of burglary, fourteen counts of theft, two counts of armed robbery, three counts of being a prohibited person using an unregistered firearm, two counts of false imprisonment, one count of handling stolen goods and one count of attempted armed robbery. He was subsequently sentenced to a total effective sentence of 14 years’ imprisonment with a non-parole period of nine years. The applicant seeks leave to appeal against his conviction. The sentences imposed in respect of these offences are the subject of a separate appeal.

The sole ground of appeal against conviction is that the applicant changed his plea from not guilty to guilty as a result of improper pressure exerted by the judge.

The alleged improper pressure consists of remarks made by the judge to the applicant after the jury had been discharged without verdict. The judge first told the applicant that she considered that the Crown witnesses ‘were really good witnesses’ and that the Crown case was a ‘very strong prosecution case’ and then told the

applicant that, if he pleaded guilty, he would receive ‘a substantial discount’, ‘a large discount’, ‘more than the usual discount for pleading guilty’.[20]

[20]Transcript of Proceedings, R v Guariglia (County Court of Victoria, Judge Douglas, 16 May 2008) (‘TP’) page 394 lines 25–31, page 395 lines 1–17.

I have had the considerable advantage of reading the draft judgment of Nettle JA but I am, with respect, unable to agree with his Honour’s conclusion. For the reasons which follow I am not persuaded that in the context of this case the plea of guilty was tainted by improper pressure. In my view the judge’s observations can be characterised as providing the applicant with information which served to more fully inform him before he made the decision whether to plead guilty or not guilty. In reaching this conclusion I have had regard to the following matters:

(i) the totality of her Honour’s remarks;

(ii) after the judge made her remarks the matter was adjourned for three days so the applicant could properly consider his position and to enable plea negotiations to take place. During those three days the applicant conferred with his counsel on three separate occasions and then signed a document confirming his instructions to plead guilty;

(iii) the applicant’s guilty plea represented his part of a plea bargain with the prosecution. As part of that arrangement the prosecution agreed, among other things, to drop two counts of armed robbery. The applicant obtained a significant benefit from the plea agreement and there can be little doubt that this influenced his decision to plead guilty; and

(iv) the applicant was 36 years of age at the time of these events and is familiar with the criminal justice system. He has 65 prior convictions resulting from six previous court appearances.

It follows that I would dismiss the application for leave to appeal against conviction.

I propose to first set out the relevant facts and then the applicable principles.

Relevant Facts

The background facts are set out in the judgment of Nettle JA and I need not repeat them here.

Immediately after the jury was discharged the judge indicated that she wanted to put a couple of things to Mr Williams, former counsel for the applicant. Her Honour also said that she wanted the applicant to listen. In his affidavit of 5 October 2010 Mr Williams says that the comments which followed from the judge seemed to be ‘clearly directed to Mr Guariglia’. According to Mr Williams: ‘[T]he judge was looking over me and to the dock when she made the comments’.[21]
[21]Affidavit of Jarrod Douglas Williams, 5 October 2010, [9].

The following comments by the judge form the basis of the applicant’s contention that her Honour placed improper pressure upon him to plead guilty.

HER HONOUR: All right. Now [addressing herself to Defence Counsel], I just want to put a couple of things to you.
DEFENCE COUNSEL: Yes, your Honour.
HER HONOUR: [Addressing herself to the applicant] I want you to listen, Mr Guariglia.
APPLICANT: Yes.
HER HONOUR: I don’t really talk to accused, but I always like to make clear what I am saying to the barrister clear to you. In this trial, there were a number of witnesses. There was Mr Reid and Ms O’Brien – who we’ve only had a little bit of evidence from – and the two young fellows. I don’t decide if anyone is guilty or not guilty, my role is to be the umpire, if you like, and decide the law. From where I’m sitting, they were really good witnesses. From where I’m sitting – and I don’t decide it but I’m just giving you my view, which you can use or not use.
I thought it was a very strong prosecution case.

Now, I want the Crown and the defence to talk about this and other trials, because I’ll tell you what, Mr Williams. If Mr Guariglia decides to plead guilty to this last trial, this is the third – otherwise, it will be the third trial and there will be people – the expense of getting those three serving prisoners giving evidence – and it’s clear to me, the stress they’re undergoing, and whatever one thinks of Peter Reid, he’s undergoing an enormous amount of stress, and the young fellows.
Your client would get a substantial discount – a substantial discount, because it’s not just showing remorse – or it could be showing remorse. It’s the public policy for me – as the judge that sat through two – would be that you would get more than the usual discount for pleading guilty. Your client is not an old man but he’s not a young man, and I reckon that just looking at it from my perspective, as I said, it was a very strong Crown case, and the sentence you would get on trial – which is the correct sentence – would be a substantial one.
When you plead guilty, the law is you must get a reduction, and as I say, having seen what a third trial would do, I know the time and the effort and the expense, and I’m willing to say now, I would give a large discount. Now, your client has already got seven counts he’s going to plead guilty to in that last one - which are burglaries and thefts – as well as the Torque Tyres. There’s also that Presentment - counsel will have to assist me here. I don’t know it particularly well, but it’s 16 counts, and it may well be one or two trials, and it’s Shauna O’Brien, the accused and Peter Reid and son. Is that right?
DEFENCE COUNSEL: That’s right.
HER HONOUR: I reckon there’s got to be some discussions about it. Now Mr Guariglia, you have every right to stand trial and to test the Crown case, but at this stage, I just think it’s probably in everyone’s interest to talk. If nothing happens, nothing happens. But it’s your client who is going to be doing the time, not me.
DEFENCE COUNSEL: Right.
HER HONOUR: Or not anyone else. So it’s in his personal interest to think hard, and perhaps the Crown can think, also with some negotiations, in relation to that 16-count Presentment. I’d like everyone to talk tomorrow about all this.
DEFENCE COUNSEL: Yes, your Honour.
HER HONOUR: We can have a look at what’s going to happen because I think we’ve got to clear Mr Guariglia’s matters before I get to Mr Dinelli. I go on holidays in three weeks. Yes Mr Guariglia.’
APPLICANT: Your Honour, can I get a couple of days break. I’ve been trying to see a doctor for the last month.[22]

[22]TP page 394 line 13 – page 396 line 18.

A discussion followed between the judge and defence counsel as to the need for the applicant to seek medical attention for a kidney stone problem after which the judge again addressed counsel and the applicant:

HER HONOUR: But I think you’ve got to think about it sooner rather than later, Mr Guariglia, you know. You’ve got to make a decision about all this, and the Crown may well give and take, too. Okay? Are you in pain?
APPLICANT: Only at night-time sometimes I – a bit of blood and that’s it, you know what I mean.
HER HONOUR: I’m not trying to intrude into your health, but what I think – and it’s hard, Mr Williams, for your client. I’ve sprung this on him but I think he’s entitled obviously to have medical help. But I think also he’s got to bite the bullet and think about all of this. If he decides to got to trial, of course he can.
But I think there’s got to be – as I tell juries – you’ve go to weigh up everything, see everyone else’s point of view and come to a conclusion because I’m sure that the moment there’s a resolution, however it comes about, everyone’s stress levels will go down and that’s not a bad thing if you’ve got health problems. So when do you say you’ll be able to talk to your client and the Crown, Mr Williams?
DEFENCE COUNSEL: I can commence discussions immediately.
HER HONOUR: But you’ve got to talk to your client.
DEFENCE COUNSEL: Yes, of course, that’s right, and I could ---
HER HONOUR: What’s today? Would Friday be too soon to come back and tell me? Is that okay with you, Mr Guariglia? That sound fair?
APPLICANT: Yes ma’am.
HER HONOUR: Do you want to have a quick talk to your client? Thursday or Friday?
DEFENCE COUNSEL: Yes. Thank you, your Honour. Friday would be suitable for Mr Guariglia.
HER HONOUR: Okay, and when I said a substantial discount in relation to this trial, in the circumstances the whole package because of what’s happened, okay?
DEFENCE COUNSEL: I put it that way, Your Honour, yes. I’m sure my client did as well and ---
HER HONOUR: So it’s a hard decision to make I know, and as I say, Mr Guariglia, I don’t want this to be pressure. I just want to be perhaps telling you what’s on my mind and we’ll see how we go. We’ll adjourn this case until – for mention on Friday and then you’ll know what the situation is, then we can look at the program.
DEFENCE COUNSEL: Yes, Your Honour, thank you.[23]

[23] TP page 397 line 16 – page 398 line 27.

Following the exchange set out above the matter was adjourned. What then took place is canvassed in the applicant’s affidavit of 10 June 2010 and in an affidavit by his former counsel, Mr Williams, dated 5 October 2010. Neither deponent was cross examined and their evidence differs in significant respects. I deal with some of these evidentiary conflicts later but note now that I prefer Mr Williams’ evidence in respect of these events.

In preparing his affidavit Mr Williams refreshed his memory on the basis of his contemporaneous notes; it was not suggested that the applicant made any notes of these events. I have also had regard to the fact that the applicant has a clear interest in the outcome of these proceedings and that he has an extensive criminal history, including dishonesty offences. In my view, the applicant’s evidence should be regarded with considerable caution.

It is common ground that shortly after the matter was adjourned the applicant had a half hour discussion with his counsel in the cells at the County Court.

The applicant’s version of this discussion is set out at paragraphs 12 and 13 of his affidavit.

12.He told me he had spoken to the prosecution and they had agreed that if I pleaded guilty to certain charges the armed robbery allegation concerning Vinnie’s Fruit Store would not be proceeded with and some summary offences would also be withdrawn.
13.Mr Williams told me that the judge had offered me a substantial discount. He said it was good for me. I asked him what I was looking at in terms of the amount of time I would have to be in prison. He told me that if I accepted the judge’s offer I would most likely receive a sentence of around 6 years with a non-parole period of 4 years. He told me that if I did not accept the judge’s offer I would receive a lengthy sentence if I was convicted. I asked him to ask the judge for an indication of what sentence she would impose. He told me the judge couldn’t tell me. He said it was a good deal and I should take it. I agreed to do so. I felt backed into a corner at that point. I thought that if I didn’t take it I was going to get a long sentence.[24]

[24]Affidavit of Geoffrey Guariglia, 10 June 2010.

Mr Williams deals with this discussion at paragraphs 11 and 12 of his affidavit. He denies giving any indication as to any likely sentence and denies expressing the judge’s comments in terms of an ‘offer’ which the applicant could accept or reject. According to Mr Williams, the applicant did not provide him with any instructions, at that time, that he was prepared to plead guilty to any charges. Rather it was agreed that the applicant would consider his position and they would meet again in a few days to discuss things further.

As I have indicated I prefer Mr Williams’ evidence. The findings which follow are based on that evidence.

During the half hour discussion in the County Court cells Mr Williams informed the applicant that if he pleaded guilty the Crown would not proceed with certain charges including a charge of armed robbery of the ‘Vinnies Fruit Store’. Mr Williams told the applicant that the substantial discount in the event of a guilty plea would be ‘good for [him]’ in the sense that he would receive a sentence which would be substantially less than if he was convicted by a jury after a contested trial. Mr Williams advised the applicant to seriously consider his position because, in his view, the prosecution case was a strong one. The applicant sought counsel’s advice about the possible length of any gaol sentence. Mr Williams said that he would need to consider a number of matters before he could give him proper advice as to sentence. At that time the applicant did not provide any instructions that he was prepared to plead guilty to any charge. The applicant said he wanted to think about things. They agreed to meet in a couple of days and the applicant said he would consider his position in the meantime.

On Thursday 29 May 2008 Mr Williams attended Melbourne Assessment Prison and had a conference with the applicant, of over two hours duration. The applicant told Mr Williams that he had been thinking about the matters they had discussed the previous Tuesday and had spoken to his mother. The applicant instructed Mr Williams that he wished to plead guilty to the ‘Hi Fi Van’ armed robbery, the ‘TAB’ armed robbery and the ‘Diggers Rest’ attempted armed robbery. During the course of the conference the applicant gave specific instructions that he would not be prepared to resolve matters unless it was agreed that the prosecution not seek the forfeiture of a blue Holden Clubsport which had been seized by police in the course of their investigations. The applicant wanted his mother to be able to sell this car and have the proceeds. He instructed his counsel to discuss the matter with the prosecution.

Following further negotiations the prosecution agreed not to seek forfeiture of the blue Holden Clubsport.

On 30 May 2008 Mr Williams had a further lengthy conference with the applicant in the holding cells at the County Court. Mr Williams spent some time going through all of the charges to which the applicant would be pleading guilty and all of the allegations which formed the basis of those charges. In his affidavit of 5 October 2010 Mr Williams says:

I am confident that Mr Guariglia understood precisely what he was pleading guilty to.[25]

[25][12(L)].

Mr Williams obtained written instructions from the applicant that he was prepared to plead guilty to the charges discussed. Annexure GG1 to Mr Williams’ affidavit is a copy of the written document signed by the applicant confirming his instructions to plead guilty. That document contains the following statement:

I understand that a plea of guilty constitutes an admission of all of the elements of the offences. I give these instructions of my own free will and after having received detailed advice from Mr Williams as to the law and the evidence in my case.
My decision to plead guilty has been my decision and I give these instructions of my own free will, having received detailed advice in conference yesterday and today with my barrister, Jarrod Williams. I have not been subjected to any pressure or undue persuasion from anyone in coming to this decision. I have discussed my decision with my family and I have had sufficient opportunity to consider my position and I am comfortable with my decision.
My decision to plead guilty has been made following Her Honour, Judge Douglas indicating to me that she would give me a ‘substantial discount’ if I

were to plead guilty and having run two aborted trials in respect of Presentment Number U00394627.
In addition, my decision to plead guilty has been made following the fact that the prosecution have agreed to withdraw a number of counts upon which I had previously been presented, including an armed robbery where the victim is [victim] on 6^th March 2005, an armed robbery on a fruit shop on 28^th April 2005 a conspiracy to commit an armed robbery in Montrose on 7^th July 2005 and a count of money laundering. I also understand that the police have agreed to return to my possession my blue Holden Clubsport which had been seized in the course of their investigations.

It is apparent from this document that her Honour’s observation that the applicant would receive a substantial discount if he pleaded guilty was only one of a number of considerations which the applicant took into account.

I deal with the rest of the affidavit evidence later. I now turn to the applicable principles.

The Applicable Principles

As a general proposition, an informed and deliberate plea of guilty is treated as final unless it can be established that a miscarriage of justice has occurred. Courts adopt a cautious approach to allowing a change of plea, whether at trial or on appeal. As Kirby P observed in R v Liberti:[26]

For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence.[27]

[26](1991) 55 A Crim R 120.

[27]Ibid 122; see also R v Sagiv (1986) 22 A Crim R 73, 81 (Lee J) and R v Coffey (2003) 6 VR 543.

The onus of establishing that the maintenance of a plea of guilty would result in a miscarriage of justice rests on the applicant.[28]
[28]R v Collis (1989) 43 A Crim R 371, 374.

As I have indicated, the sole ground of appeal is that the applicant changed his plea from not guilty to guilty as a result of improper pressure exerted by the judge. Counsel relied on the decision of the English Court of Appeal in Turner and that of the New South Wales Court of Criminal Appeal in KCH in support of the appeal.

A plea of guilty must be an exercise of free choice by the accused.[29] Whether or not the decision to plead guilty in a particular case is made as an exercise of free choice is simply a question of fact. The determination of such a question ought not proceed on the basis of some a priori assumption that certain judicial intimations will invariably vitiate a plea of guilty. It seems to me that both Turner and KCH proceed on such an erroneous assumption.
[29]Meissner v The Queen (1995) 184 CLR 132; Maxwell v The Queen (1996) 184 CLR 501.

In Pinhassovitch this Court declined to follow Turner. Pinhassovitch was subsequently applied in Holden. The majority in KCH applied Turner and declined to follow the judgment of this court in Pinhassovitch. I also note that in R v Goodyear[30] a five member bench of the English Court of Appeal significantly modified the approach taken in Turner. More recently, Turner was not followed by the Supreme Court of South Australia (Court of Criminal Appeal) in R v Pugh.[31]
[30][2005] 1 WLR 2532.
[31](2005) 158 A Crim R 302.

In Turner the appellant entered a plea of guilty after being advised by his counsel that if he pleaded guilty he would receive a fine or some other non-custodial sentence but if he contested the charge and was convicted there was a very real possibility that he may receive a sentence of imprisonment. This advice was conveyed to the appellant shortly after his counsel had seen the trial judge in chambers. On appeal the court was satisfied that the appellant had received the impression that the views expressed to him by counsel represented the views the trial judge had communicated to counsel. The Court of Appeal decided that this represented improper pressure on the defendant to plead guilty and that in the circumstances the appropriate course would be to treat the guilty plea as a nullity.

In essence, Turner decided that whereas counsel may give advice, which includes advice about the likely sentence on a guilty plea, such information coming from the court itself was impermissible:

The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential.[32]

[32][1970] 2 QB 321, 327.

The court referred to occasions when the judge would tell counsel that on the basis of the information before him, the sentence which would follow a guilty plea would be non-custodial, without saying anything about what would happen if the case proceeded to trial and conviction.

Even so, the accused may well get the impression that the judge is intimating that in that event a severer sentence, maybe a custodial sentence would result, so that again he may feel under pressure. This accordingly must also not be done.[33]

[33]Ibid.

The court considered that the only exception to the rule that an indication of sentence should not be given is:

…that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, e.g., a probation order or a fine, or a custodial sentence.[34]

[34]Ibid.

Turner stands for the proposition that a statement by a judge (or attributed to a judge) that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a more severe sentence will, of itself, vitiate a plea guilty.

The views expressed in Turner have been subsequently considered by the English Court of Appeal in Goodyear.

In Goodyear the court noted that the practice promulgated in Turner effectively prohibited the judge from giving any indication of sentence in advance of a guilty plea. A five member bench was convened to consider whether this rule of practice should be modified and, if so, to what extent. The court referred to a number of extra curial suggestions to the effect that the principles in Turner merited re-examination and noted that some departures from the Turner principles were now permitted by statute such that there was no longer any absolute prohibition against an advance indication of sentence. The plea and case management hearing in the English Crown Court at that time specifically required the judge to seek and be given information as to the following matters:

(i) whether the defendant has been advised about the credit to be obtained for a guilty plea; and

(ii) what steps had been taken to see whether the case might be resolved without a trial.

The court observed that these matters ‘sufficiently demonstrate a very different culture to that which obtained when R v Turner was decided’.[35]
[35][2005] 1 WLR 2532, 2539 (Lord Woolf CJ, Judge LJ, Treacy, Wakerley and Calvert-Smith JJ).

The court went on to modify the principles in Turner by permitting (but not requiring) a trial judge to indicate his or her view as to the maximum sentence which would be imposed if a plea of guilty were entered at the stage at which the indication is sought. The judge would not be permitted to give an advance indication of sentence unless one has been sought by the defendant.[36]
[36]Ibid 2540.

The court also determined that once an indication has been given, it is binding and remains binding on the judge who has given it, and it also binds any other judge who becomes responsible for the case. If, after a reasonable opportunity to consider his position in light of the indication, the defendant does not plead guilty, the indication will cease to have effect.[37]
[37]Ibid 2542.

Lord Woolf CJ, on behalf of the court, explained the rationale for the modification to the Turner principles, as follows:

R v Turner emphasised that the defendant was entitled to receive advice from his counsel about the sentence possibilities, so as properly to inform himself whether to plead guilty or not. That was deemed not to involve the risk of pressure on him. However R v Turner did not directly address the situation which would apply if the defendant personally was seeking an indication of sentence from the judge. After R v Turner, it became the practice to assume that he was not entitled to do so. Therefore, a somewhat strange situation developed that although the defendant’s decision about his plea could properly be informed by the views of counsel about the sentence the judge would be likely to pass (provided always that he, counsel, had not participated in any discussions with the judge) it had simultaneously to be made ignorant of the judge’s own views, even if the defendant wanted to know them. That position requires examination. In any event, the further question remains whether it continues to be appropriate to proceed on the basis that clear, and if necessary strong, but inevitably incompletely informed advice from counsel, about the advantages which would accrue from and the consequences which would follow an early guilty plea is permissible, while an intimation of these matters initiated by the judge should always, without more, be deemed to constitute improper pressure on the defendant, and therefore prohibited.
In our judgment, there is a significant distinction between a sentence indication given to a defendant who has deliberately chosen to seek it from the judge, and an unsolicited indication directed at him from the judge, and conveyed to him by his counsel. We do not see why a judicial response to a request for information from the defendant should automatically be deemed to constitute improper pressure on him. The judge is simply acceding to the defendant’s wish to be fully informed before making his own decision whether to plead guilty or not guilty, by having the judge’s views about sentence available to him rather than the advice counsel may give him about what counsel believes the judge’s views would be likely to be.
We cannot, and do not seek to water down the essential principle that the defendant’s plea must always be made voluntarily and free from any improper pressure. On closer analysis, however, we cannot discern any clash between this principle, and a process by which the defendant personally may instruct his counsel to seek an indication from the judge of his current view of the maximum sentence which would be imposed on the defendant. In effect, this simply substitutes the defendant’s legitimate reliance on counsel’s assessment of the likely sentence with the more accurate indication provided by the judge himself. In such circumstances, the prohibition against the judge giving an unsolicited sentence indication would not be contravened, and any subsequent plea, whether guilty or not guilty, would be voluntary. Accordingly it would not constitute inappropriate judicial pressure on the defendant for the judge to respond to such a request if one were made.
We have further reflected whether there should continue to be an absolute prohibition against the judge making any observation at all which may trigger this process. The judge is expected to check whether the defendant has been advised about the advantages which would follow an early guilty plea. Equally he is required to ascertain whether appropriate steps have been taken by both sides to enable the case to be disposed of without a trial. Following this present judgment he will know that counsel is entitled to advise the defendant that an advance indication of sentence may be sought from him. In these circumstances, we do not believe that it would logical, and it would run contrary to the modern views of the judge’s obligation to manage the case from the outset, to maintain as a matter of absolute prohibition that the judge is always and invariably precluded from reminding counsel in open court, in the presence of the defendant, of the defendant’s entitlement to seek an advance indication of sentence.[38]

[38]Ibid 2539–2540.

Two things may be said about the departure from the Turner principles sanctioned in Goodyear and the rationale for that departure.

The first is that the distinction drawn by the court between a sentence indication given at the request of the defendant and an unsolicited indication is, with respect, unconvincing. In both cases the sentence indication serves to fully inform the defendant before making his or her own decision about whether to plead guilty or not guilty. Yet the distinction drawn by the court seems predicated on the proposition that an unsolicited indication amounts to improper pressure, but where such an intimation is given at the defendant’s request no improper pressure arises. Such a distinction is artificial; in both instances the intimation is given by the judge. Either such an intimation removes the voluntary character of the plea or it does not. Whether the intimation is sought or is unsolicited hardly seems to the point.

I note in this context that the court did not rule out some future change to the current prohibition on unsolicited sentence indications. In the course of his judgment Lord Woolf CJ said:

If… the defendant does not seek an indication of sentence, then, at any rate for the time being, it would not be appropriate for the judge to give or insist on giving any indication of sentence …[39]

[39]Ibid 2540 (emphasis added).

The second point relates to the court’s observation that the ‘culture’ which obtained when Turner was decided is now ‘very different’. I would venture to make the same observation in relation to the Victorian context. The provision of sentence indications has been given statutory recognition,[40] though there are a number of differences between the regime operating in Victoria and that which operates in England. Trial judges also play a more active role in case management. As their Honours Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed in Johnson v Johnson:[41]

The rules and conventions governing [judicial] … practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.[42]

[40]Criminal Procedure Act 2009 (Vic) ss 207–209.

[41](2000) 201 CLR 488.

[42]Ibid 493; see also Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

I acknowledge that Johnson was decided in the context of a civil matter and that the approach in criminal proceedings is necessarily more constrained. However in directions hearings in respect of criminal matters judges routinely encourage parties to have discussions, inquire about the prospects of a plea and remind parties that a guilty plea will attract a discount. The County Court Criminal Procedure Practice Note[43] provides that at a directions hearing the defence must ‘indicate whether the matter is likely to proceed as a trial and provide details of any plea offers the accused is prepared to make, or has made, and the status of those discussions’.
[43]County Court of Victoria Practice Note, PNCR 2-2010, County Court Criminal Procedure Practice Note, 4 January 2010, [60].

The process of judicial and legislative encouragement of guilty pleas has accelerated in recent years. As McHugh J observed in Cameron v The Queen:[44]

Australian courts have enthusiastically embraced the proposition that a person who pleads guilty should receive a lesser sentence than one who pleads not guilty and is convicted. In so far as a plea of guilty indicates remorse and contrition on the part of the defendant, the courts have long recognised it as a mitigating factor of importance. But in recent years, under the pressure of delayed hearings and ever increasing court lists, Australian courts have indicated that they will regard a plea of guilty as a mitigating factor even when no remorse or contrition is present. They have taken the pragmatic view that giving sentence ‘discounts’ to those who plead guilty at the earliest available opportunity encourages pleas of guilty, reduces the expense of the criminal justice system, reduces courts delays, avoids inconvenience to witnesses and prevents the misuse of legal aid funds by the guilty.’[45]

[44](2002) 209 CLR 339.

[45]Ibid [39] (citations omitted).

How then has Turner been received in Victoria? As I indicated earlier, Turner was not followed by this court in Pinhassovitch.

In Pinhassovitch an applicant sought leave to appeal from a conviction of attempting to commit an indictable offence namely, by deception dishonestly obtain for another financial advantage (‘the charge’) based on his guilty plea. The central facts may be shortly stated. On 6 September 1993 the applicant was arraigned and pleaded not guilty to the charge. The matter was again mentioned before Judge Kelly on 1 October. The matter was stood down until 2.15pm, at the request of senior counsel for the applicant. At 2.15pm the applicant was arraigned and pleaded guilty to the charge. The applicant had a conference with his counsel about two hours before he entered his guilty plea. In an affidavit the applicant’s counsel deposed as to what was said during that conference, in particular:

I advised the applicant that he ran considerable risks of a heavier sentence if he contested the charge and that his defence was unlikely to succeed. I reminded him of Judge Kelly’s comments at earlier mentions. I told him it was clear that the trial judge thought the case against him was very strong and that suggested the likelihood of a considerable sentence discount if he pleaded guilty thereby obviating the necessity of a long trial.[46]

[46](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and O’Bryan JJ, 7 February 1994), 7.

The first ground of appeal was that the applicant did not intend or wish to plead guilty to the relevant offence but was induced to do so by his counsel. It was contended that counsel had advised him that the trial judge wanted him to plead guilty and had exerted pressure upon him such that his will was overborne.

The court rejected this contention and held that the reference to the trial judge’s opinion did not nullify the applicant’s freedom of choice and that he was ‘well aware that the right to a trial was his to exercise whatever the judge’s opinion on the matter might be’.[47] The approach taken by the court was to determine as a matter of fact whether, having regard to all of the evidence, the applicant knew what he was doing when he pleaded guilty and whether his plea was entered as a result of a free choice on his part. It is apparent from the following extract from the court’s judgment that their Honours declined to follow Turner:

At the end of the day the outcome of the applicant’s application stood or fell depending upon the acceptability of an argument that rested upon the English case of R v Turner. In that case it was held that, if the judge expressed the view, or the applicant for good reason thought that the judge had done so, that the accused should plead guilty, then such intervention should or could be held to have deprived the accused of the possession of a free choice. We have already referred to what passed between the judge and counsel. In all the circumstances of this case we are unable to find established the allegation that reference to the judge’s opinion nullified the applicant’s freedom of choice. We are quite satisfied that the applicant was well aware that the right to a trial was his to exercise whatever the judge’s opinion on the matter might be. Assuming (without finding) that senior counsel did tell the applicant that the trial judge wanted the applicant to plead guilty the statement was not accompanied by any threat or prospect of an adverse consequence if the judge’s wish were ignored. In the absence of any such threat or prospect the applicant, we believe, was aware of his right to opt for a trial and that, if he did so, the jury, not the judge, would determine his guilt or innocence.[48]

[47]Ibid 10.

[48]Ibid (citations omitted).

The approach taken in Pinhassovitch was followed in Holden.[49]
[49][2009] VSCA 254.

In Holden this Court held that it was not a sufficient basis to set aside a conviction following a plea of guilty that, before the plea was given, the trial judge encouraged counsel for the Crown and the accused to have ‘meaningful discussions’. In that matter the exchange between the trial judge and counsel was in the following terms:

HER HONOUR: Okay I will give you time. I really would like to stress that I really think this matter should really be capable of resolution overall. Thank you.
[short adjournment] …
COUNSEL: Your Honour, we have been having meaningful discussions, they are still in train and, your Honour, we are both of the view that it would be worthwhile to come back at 2 o’clock or 2:15.
HER HONOUR: Look, I seriously have to say I think in light of what’s come out in the trial then on both sides there should be a sensible solution. I will give you the time. I think that is worthwhile.[50]

[50]Ibid [28] (Neave JA).

The trial resumed about three hours later when counsel for the Crown informed her Honour that the matter had been resolved, and her Honour congratulated counsel on achieving ‘a very successful outcome’.[51] Mr Holden then pleaded not guilty to murder, but guilty to manslaughter. The jury then returned a directed acquittal to murder and Mr Holden was convicted of manslaughter.
[51]Ibid [29].

Neave JA, with whom Buchanan JA and Hansen AJA agreed, dismissed the application for leave to appeal, and held that the trial judge’s comments did not provide a sufficient basis to set aside the conviction. Her Honour also dealt with the applicant’s contention that he believed that his counsel had spoken to the judge in his absence and pleaded guilty because he believed that the judge had told counsel he should do so. After referring to Ipp AJA’s judgment in KCH, her Honour observed that:

The Victorian view is different. In Pinhassovitch an applicant sought leave to appeal from a conviction based on his guilty plea. He alleged that the plea was not freely made because his counsel exerted undue pressure on him and advised him that the judge wanted him to plead guilty. His counsel deposed that he had told the applicant that ‘the trial judge thought the case against him was very strong’. The Court held that the reference to the trial judge’s opinion did not nullify the applicant’s freedom of choice and that he was ‘well aware that the right to a trial was his to exercise whatever the judge’s opinion on the matter might be’. They noted that counsel’s advice was not accompanied by any threat or consequence if the judge’s wishes were ignored.
According to Pinhassovitch the question whether a miscarriage of justice has occurred depends on a factual decision as to whether the accused freely chose to plead guilty. Contrary to the majority view in KCH, Pinhassovitch held that the fact that an accused is told that the judge considers that there is a strong case against him or her, does not necessarily deprive the accused of his or her freedom of choice.
However even if Ipp JA’s view were accepted in Victoria, I do not consider that Mr Holden has established, on the balance of probabilities, that he believed on the basis of what counsel had told him, that the judge considered he should plead guilty or that the judge would give an unfavourable jury direction if he did not do so.[52]

[52]Ibid [107] (citations omitted).

In KCH a majority of the NSW Court of Criminal Appeal held that a plea of guilty had been procured by improper pressure and was not the result of an exercise of free choice. The plea was entered on the second day of the appellant’s trial on one count of sexual intercourse with a child under 10 and on an alternative count of aggravated indecent assault on the same child. The plea was entered after the appellant’s counsel had informed him that in the view of the trial judge there was a distinct possibility that he may be convicted of the more serious charge and hence should plead guilty to the alternative charge, being the less serious offence. Ipp AJA (with whom Sperling J agreed) was not persuaded that the appellant was told of the judge’s views before he decided to plead guilty and hence the advice as to the judge’s views had not brought about the appellant’s decision to plead guilty. However his Honour found that the views attributed to the judge influenced the appellant to maintain his decision to plead guilty to the lesser charge.

Ipp AJA described his factual findings and the issue for determination in these terms:

… the relevant circumstances must be taken to be as follows. First, there were several factors that initially caused the appellant to decide to plead guilty. Secondly, those factors did not include the information about the views allegedly expressed by Karpin DCJ. Thirdly, the appellant maintained that decision because of all those factors, plus the information about her Honour’s views. The question then is: in these circumstances, was the entering of the plea procured by improper pressure?[53]

[53](2001) 124 A Crim R 233, 247 [98].

His Honour answered that question in the affirmative. He concluded that the statement made to the appellant as to the views allegedly expressed by the judge influenced him in maintaining his decision to plead guilty and as a consequence the plea was procured by improper pressure. His Honour reasoned that:

The effect of advice as to the prospects of a defendant being found guilty, given by a person cloaked with the full power of judicial office, who is presumed to have deep knowledge and understanding of the law and to be entirely neutral, is incalculable. For an accused person, whose liberty is in immediate jeopardy, advice from such a source would carry immeasurable weight and would be very difficult to resist. The ordinary consequence will be that such advice will be regarded as having overborne the free will of the defendant and the integrity of the plea of guilty will be regarded as irretrievably tainted.
In my opinion, a guilty plea so brought about is an irregularity or flaw in the conduct of the trial so fundamental that it goes to the root of the proceedings and, of itself, will amount to a substantial miscarriage of justice … In my opinion, if it is found that the decision to plead guilty was materially influenced by incorrect advice that the judge had expressed views of the kind alleged in this case, improper pressure is established and a finding of a miscarriage of justice must inevitably be made.[54]

[54]Ibid 239-40 [36]–[38].

In reaching his conclusion his Honour relied on Turner and declined to follow Pinhassovitch.

In his dissenting judgment Hulme J concluded in these terms:

… I am unable to take the view that there is something so commanding in any expression of a judge’s opinion that any decision made thereafter is to be presumed, irrefutably or not, to be made either not in the exercise of freedom of choice or as the result of improper pressure. The law has moved past the development of new legal fictions. Thus, as was the Victorian Court of Criminal Appeal in Pinhassovitch, I am unable to accept the view advanced by Lord Parker CJ in Turner which Ipp AJA has quoted.[55]

[55]Ibid 257 [171] (citations omitted).

I should also mention two other cases which bear on the determination of this general issue, R v Boyd[56] and R v Pugh.
[56][2000] NSWCCA 110 (Powell JA, Hulme and Dowd JJ).

In Boyd the trial judge was asked by the Crown prosecutor in open court, but in the absence of the jury, what course he would adopt in regard to sentencing the accused. The judge said that if the accused had prior convictions, were he to be convicted he would ‘certainly go to jail on a fulltime basis’.[57] His Honour went on to say ‘if there is a plea forthwith, I would consider a penalty short of a fulltime custodial sentence.’[58] The appellant contended that this observation constituted undue pressure and he was thereby deprived of the requisite freedom of choice. Support for that submission was based, in part, on Turner.
[57]Ibid [17] (Powell JA).
[58]Ibid.

In dismissing the appeal Powell JA (with whom Hulme and Dowd JJ agreed) said:

Although the observation made by McGuire DCJ as to what would occur if the trial were to proceed and the Appellant were to be found guilty may, in the light of the observations of Lord Parker CJ, be regarded as having been unfortunate, I am not persuaded that the Appellant – who bears the onus of doing so – has demonstrated that there has been a miscarriage of justice as the result of the Appellant’s plea of guilty having been entered following undue pressure and not because it represented a genuine consciousness of guilt.[59]

[59]Ibid [36].

Pugh concerned an appeal against conviction and sentence following a guilty plea. It was contended that the appellant’s guilty pleas had been entered as a consequence of erroneous information and advice from his counsel, rather than from consciousness of his own guilt, resulting in a miscarriage of justice. The court dismissed the appeal.

The aspect of Pugh of present relevance relates to the appellant’s plea of guilty in respect of count 4. The relevant facts are set out in the judgment of Gray J and are as follows:

· The appellant informed Mr Ibbotson [his counsel] that he required “some indication of the likely sentence to be imposed” before he could consider the prosecution proposal. Mr Ibbotson advised the appellant that the Judge would not be in a position to give an exact indication of the length of the sentence, however, some indication of the general terms and approximate length of the head sentence and on-parole period might be able to be obtained. The appellant instructed Mr Ibbotson that in the absence of a sentence indication of a non-parole period of approximately two and a half years, he would maintain his plea of not guilty.

· Counsel then returned to the Judge’s Chambers. A discussion took place. Mr Ibbotson asserted that during this discussion the Judge gave an indication of a head sentence of between five and six years and a non-parole period in the vicinity of two and a half years.’[60]
[60](2005) 158 A Crim R 302, 331 [150].

· In his report the trial Judge ‘advised that it was not his usual practice to give an indication or undertaking as to length or composition of a sentence either in Court or in Chambers. The Judge recalled meeting counsel in chambers on 13 October 2004 but had no detailed recollection of what occurred. The appellant was not present. No transcript was taken. No notes were taken. The Judge reported that no definite arrangement regarding the sentence to be imposed was made in the terms deposed by counsel.

· Counsel for the prosecution swore an affidavit in terms consistent with the report of the Judge. Counsel for the prosecution denied that any definite agreement had been reached in Chambers regarding the appellant’s sentence. [61]

· Mr Ibbotson returned a third time to speak with the appellant. He conveyed the sentencing indication to the appellant. The appellant instructed Mr Ibbotson that he would change his plea to guilty.[62]

[61]Ibid 345 [188]-[189].

[62]Ibid 331 [150].

The court accepted Mr Ibbotson’s evidence that he told the appellant that the trial judge had indicated a range in respect of the possible sentence to be imposed following a guilty plea in respect of the relevant counts.[63] The sentence actually imposed was more severe than the appellant had been led to expect. The court was not persuaded that there had been a miscarriage of justice in all the circumstances.
[63]Ibid 308 [16]–[17] (Doyle CJ), 318 [87]–[88] (Bleby J), and 353 [225] (Gray J).

The advice given to Pugh about the likely sentence purported to be a statement of the judge’s view. It was not just an assessment of what Mr Ibbotson considered the judge was likely to do.[64] The court found that the appellant’s decision to plead guilty was influenced by that advice, as well as other considerations.[65]
[64]Ibid 313 [58]–[59] (Doyle CJ); 318 [92] (Bleby J).
[65]Ibid 315 [67] (Doyle CJ); 354 [228] (Gray J).

In dismissing the appeal Doyle CJ said:

Does the fact that the advice about the likely sentence was quite wrong, and that it wrongly invoked the Judge’s name and backing, mean that there has been miscarriage of justice? The case is distinguishable from KCH. There is no suggestion that the Judge expressed a view about the guilt of the accused. The case is similar to Turner. Mr Pugh was told that the Judge was holding out a prospect of a sentence that was attractive to Mr Pugh.

I consider that the plea of guilty was entered by Mr Pugh in the exercise of a free choice. He decided to plead guilty weighing up, in broad terms, his prospects of success and the expected sentence. His expectations as to the sentence were defeated, because of Mr Ibbotson’s mistake. But that does not mean that the decision to plead guilty was not made in the exercise of a free choice. I acknowledge that it was not a fully informed choice, and that it was made in part on a mistaken basis, but that is something that will arise from time to time when a decision is made to plead guilty on the basis of advice given during the course of a trial. There was no improper inducement held out to Mr Pugh. If the Judge had in fact expressed the view attributed to him, unlike the Court in Turner, I would not regard that indication as depriving Mr Pugh of a free choice. I recognise that there is a distinction between confident advice from counsel as to the sentence that a judge is likely to impose, and a statement to the accused that the judge has indicated the sentence that the judge is likely to impose. But to my mind, at the end of the day, it remains a question of assessing the circumstances of the particular case, and I am not persuaded that the wrong advice from Mr Ibbotson deprived Mr Pugh of a free choice in the matter.[66]

[66]Ibid 315 [68]–[69] (Doyle CJ).

Nor was Bleby J prepared to follow Turner.

The decision is not binding on this Court. In any event, I do not think it follows that, merely because a sentence intimation may be reported as emanating from the trial Judge, an accused person necessarily ceases to exercise free choice in deciding to plead guilty.
In this jurisdiction, the question must turn on the particular circumstances and this Court’s assessment as to whether, in all the circumstances, the plea was entered as a result of a genuine choice on the part of the appellant. The advice given in this case about the likely sentence, even though with the apparent backing of the trial Judge, was not advice as to the strength of the prosecution case against the appellant, nor did it have any bearing on the strength of his defence. It was not advice to plead guilty, let alone advice to do so based on an assessment of the likelihood of the appellant’s being found guilty of count 4. The appellant was under no undue pressure. Only he knew the strength or otherwise of his defence to counts 4, 5 and 6. The advice was given to protect and advance the legitimate interests of the accused, having regard to the threat to those interests by continuing to trial on counts 4, 5 and 6. The appellant was quite capable of and did in fact make his own assessment of his prospects of success on those counts.[67]

[67]Ibid 325 [119]–[120] (Bleby J).

What then is one to make of the current state of the authorities? As noted by Nettle JA, the effect of Pinhassovitch (and, I would add, Holden, Boyd and Pugh) is to eschew a priori assumptions as to the impact of a trial judge’s intimation about the advantages of pleading guilty in favour of a factual assessment of the effect of the judicial intimation according to the evidence in the case. This court, though free to depart from its own earlier decisions, should do so only cautiously and when compelled to the conclusion that the earlier decision is wrong.[68] I am not persuaded that Pinhassovitch is wrong, indeed in my view it is clearly correct and is to be preferred to the approach taken in Turner and by the majority in KCH.
[68]Nguyen v Nguyen (1990) 169 CLR 245, 269 (Dawson, Toohey and McHugh JJ). Applied by the Full Court in Avco Financial Services Ltd v Abschinski [1994] 2 VR 659. Also see R v Roussety (2008) 24 VR 253, 282-5 (Weinberg JA).

Turner clearly proceeds on the presumption that a judicial intimation as to the sentence which would be imposed in the event of a plea of guilty necessarily renders a subsequent plea of guilty a nullity. As Lord Parker CJ observed:

…once he [the accused] felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter.[69]

[69][1970] 2 QB 321, 326.

In Goodyear Lord Woolf CJ said that Turner ‘effectively prohibited the judge from giving any indication of sentence in advance of a guilty plea by the defendant.’[70]
[70][2005] 1 WLR 2532, 2533.

In KCH Ipp AJA cites Turner with approval and proceeds on a similar basis. His Honour applies the same presumptive approach to judicial intimations as to the strength of the Crown’s case. This is apparent from his Honour’s observation that:

The effect of advice as to the prospects of a defendant being found guilty, given by a person cloaked with the full power of judicial office … is incalculable … and would be very difficult to resist. The ordinary consequence will be that such advice will be regarded as having overborne the free will of the defendant and the integrity of the plea of guilty will be regarded as irretrievably tainted.[71]

[71](2001) 124 A Crim R 233, 239.

As I have mentioned, Turner was decided in a very different context. At that time there was no Crown appeal against sentence, no statutory recognition of the practice of judicial sentence indication and judges were less actively engaged in case management.

In my view the adoption of an a priori assumption regarding the impact of a trial judge’s intimation about the strength of the Crown case and the advantages of pleading guilty is wrong in principle. As a matter of logic the impact of such judicial intimations necessarily depends on the nature of the comments and a range of other contextual matters. The outcome in a particular case may depend on, for example, whether the accused had a reasonable opportunity to consider his or her position; whether he or she had access to independent legal advice and the accused’s familiarity with the criminal justice system.

The question which falls for determination in this case is whether in all the circumstances the observations of the judge constituted improper pressure such that the plea of guilty was not an act of the accused’s free will. If the judge’s observations constituted improper pressure then it would seem to follow that there has been a miscarriage of justice and the appeal must be allowed. I am conscious of the need to base my decision on something more precise than a general reference to the presence or absence of a miscarriage of justice.

Although appearing in a case involving an attempt to pervert the course of justice, the guiding principles as to what constitutes a miscarriage of justice in the present context are to be found in the joint judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen:[72]

Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. 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.
Conduct is likely to have the tendency to interfere with a person’s free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused’s freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution.[73]

[72](1995) 184 CLR 132.

[73]Ibid 143.

The issue in the present matter is whether the judge’s comments are to be regarded as pressure which improperly impacted on the applicant’s freedom of choice or as being intended to protect or advance the legitimate interests of the accused. While this is a question of fact turning on the circumstances in each case the authorities to which I have referred provide some guidance.

In Holden the fact that a trial judge encouraged the parties to have meaningful discussions was not a sufficient basis to set aside a conviction based on a plea of guilty.

In Pinhassovitch an indication by the trial judge that the Crown had a strong case did not constitute improper pressure; though a different conclusion was reached by the majority in KCH.

A number of cases deal with the impact of sentence indications given by a trial judge. In the following cases such an indication did not constitute improper pressure:

Boyd: if the accused had prior convictions and was convicted he would certainly go to a jail on a full time basis but if he pleaded guilty the judge would consider a penalty short of a full time custodial sentence.

Pugh: counsel informed the accused that the judge had given an indication of a head sentence of between five and six years and a non-parole period in the vicinity of two and half years in the event of a plea.

Goodyear: a judge may respond to a defendant’s request to provide an indication of the maximum sentence which would be imposed if he pleaded guilty at that stage. The judge could also, if appropriate, remind defence counsel in open court of the defendant’s entitlement to seek such a declaration.

Against these authorities is Turner’s case, which would not sanction any sentence indication by a judge (or attributed to a judge). But Turner was decided 40 years ago in a context which is quite different to that which pertains today.

I now turn to the particular circumstances in this case.

Consideration

Counsel for the applicant contended that the judge applied improper pressure by first telling the applicant that she considered that the Crown witnesses ‘were really good witnesses’ and that the Crown case was ‘a very strong case’, and telling the applicant that, if he pleaded guilty, he would receive ‘a substantial discount’, ‘a large discount’, ‘more than the usual discount for pleading guilty’.

In his affidavit the applicant says that he agreed to plead guilty in the course of a discussion with his counsel in the County Court cells on 27 May 2008, shortly after her Honour made the comments which are set out earlier. The applicant goes on to say:

I felt backed into a corner at that point. I thought that if I didn’t take it I was going to get a long sentence …
At the point I pleaded guilty I felt under great pressure. I felt stressed and could not really see a way out. Judge Douglas said the prosecution case was strong. I don’t cope well with pressure. And when Judge Douglas made the comments she did about the substantial discount I felt I had no other choice but to accept. I also felt that if I didn’t accept the offer being made I would get a longer sentence for going on with the trials.[74]

[74]Affidavit of Geoffrey Guariglia, 10 June 2010, [13], [17].

Two things may be said about this. The first is that I do not accept the applicant’s evidence that he agreed to plead guilty shortly after her Honour’s comments. Such a proposition is inconsistent with Mr Williams’ evidence. In his affidavit Mr Williams says:

Mr Guariglia did not provide me with any instructions that he was prepared to plead guilty to any charges when I conferred with him in the cells of the County Court on 27 May 2008. It was agreed that Mr. Guariglia would consider his position and that I would visit him in a day or so at Melbourne Assessment Prison, in order to discuss things further.[75]

[75]Affidavit of Jarrod Douglas Williams, 5 October 2010, [12(g)].

I accept Mr Williams’ evidence. It is of course conceivable that the applicant decided to plead guilty on 27 May 2008 but did not tell his counsel. However, this seems unlikely. Other matters point to the fact that the applicant did not decide to plead guilty until 29 May 2008. On that date he told Mr Williams that he wanted to plead guilty but would not do so unless the police agreed not to seek forfeiture of a Holden Clubsport which had been seized by police during the course of their investigations. Following further negotiations with the prosecution it was agreed that the prosecution would not seek forfeiture of the Holden Clubsport.

The second point to make about the applicant’s evidence is that I do not doubt that he felt under considerable pressure at the time. As Mr Williams says in his affidavit:

… it did appear to me that Mr Guariglia was under a great deal of stress at the time of these events. It was for this reason that I was very careful to give detailed and considered advice to Mr. Guariglia and to give him the opportunity to properly consider his options …
The atmosphere of these trials was one of great intensity and tension. This was partially because of the intense animosity and tension between Mr. Guariglia and the witness Peter Reid, who was also a prisoner and co-defendant. Mr. Reid gave evidence three times over the course of the proceedings and was cross examined at length on each occasion. It was my observation that Mr. Guariglia did appear to find the process of the trials to be extremely taxing and he did appear to be under a great deal of stress throughout the proceedings.[76]

[76]Ibid [12(a)], [13].

I accept that the applicant felt under pressure and ‘backed into a corner’. But such pressure was a result of the circumstances in which he found himself. As Lee J observed in R v Chiron[77] (with whom Nagle CJ at CL agreed), tension experienced by an accused person at his trial is not unusual and would not call for intervention by an appellate court. I now turn to the judge’s observations and whether they amount to improper pressure.
[77][1980] 1 NSWLR 218, 241 [91].

Her Honour’s observations to the applicant fall into three categories:

(i) that in her Honour’s opinion the prosecution witnesses who had given evidence were ‘really good witnesses’ and she thought it was ‘a very strong prosecution case’;

(ii) that if the applicant pleaded guilty he would get a ‘substantial discount’ on sentencing, her Honour later says that the applicant would ‘get more than the usual discount for pleading guilty’ and that she would give ‘a large discount’; and

(iii) her Honour reminded the applicant’s counsel that it would be his ‘client who is going to be doing the time, not me’ and that it would be in the applicant’s personal interest to ‘think hard’. Later the judge told the applicant that he had to think about it ‘sooner rather than later’ and ‘you’ve got to make a decision about all this’ and ‘bite the bullet and think about all this’.[78]

[78]TP page 394 lines 25–31, page 395 lines 1–17, page 396 lines 4–5 and page 397 lines 22–27.

Seen in their proper context I am not persuaded that these observations amount to improper pressure. In relation to the first observation her Honour made it clear that she would not be deciding if the applicant was guilty or not guilty:

I don’t decide if anyone is guilty or not guilty, my role is to be the umpire, if you like, to decide the law …
From where I’m sitting – and I don’t decide it – but I’m just giving you my view, which you can use or not use.[79]

[79]TP page 394 lines 23–27.

I also note that the circumstances here are distinguishable from those which confronted the court in KCH. Here the judge has not intimated that the applicant was likely to be found guilty of a particular offence.

As to the statement that the applicant would get a substantial discount if he pleaded guilty, her Honour was simply stating the factual position. In sentencing an offender a court must have regard to whether the offender pleaded guilty to the offence and, if so, the stage of the proceedings at which the offender did so or indicated an intention to do so.[80] It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. A plea of guilty may evidence remorse and spares the community the expense of a contested trial.[81] Given that there had already been two aborted trials in respect of these matters the utilitarian benefit of a plea would be substantial.
[80]Sentencing Act1991 (Vic) s 5(2)(e).
[81]Siganto v R (1998) 194 CLR 656, 663–664 (Gleeson CJ, Gummow, Hayne and Callinan JJ).

As the High Court made clear in Meissner[82] an inducement to plead guilty does not necessarily amount to improper pressure and may be offered simply to assist the person charged to make a free choice in that person’s own interests. The observations of the trial judge simply provided the applicant with information which served to more fully inform him before he made the decision whether to plead guilty or not guilty.
[82](1995) 184 CLR 132, 141 (Brennan, Toohey and McHugh JJ) .

It is also relevant to note that unlike the situation in Boyd and Pugh, the judge did not provide any specific indication as to the sentence that she would impose. In Boyd and Pugh it was held that the specific sentence indications given did not constitute improper pressure.

As to the matters referred to in [88] (iii), they should be viewed in context and in particular having regard to the following observations made by her Honour:

Now, Mr Guariglia, you have every right to stand trial and to test the Crown case, but at this stage, I just think it’s probably in everyone’s interest to talk. If nothing happens, nothing happens.[83]

So it’s a hard decision to make I know, and as I say, Mr Guariglia, I don’t want this to be pressure. I just want to be perhaps telling you what’s on my mind and we’ll see how we go.[84]

[83]TP page 396, lines 1-5.

[84]TP page 398, lines 21-24.

There is no vice in a trial judge encouraging parties to have discussions.[85]
[85]See Holden [2009] VSCA 254.

A number of other matters also tell against the proposition that the judge placed improper pressure on the applicant to plead guilty.

At the outset it is important to appreciate that after the judge made her observations the matter was adjourned for three days,[86] so the applicant could properly consider his position and to enable plea negotiations to take place.
[86]The matter was adjourned on Tuesday 27 May 2008 and the applicant pleaded guilty on Friday 30 May 2008.

During the intervening period the applicant met with his counsel on three occasions and was given independent advice as to his circumstances. He had a reasonable period of time within which to consider his position. He had also spoken to his mother.

It is also important to bear in mind that the applicant’s guilty plea represented his part of a plea bargain with the prosecution.[87] As part of that arrangement the prosecution agreed to withdraw a number of counts upon which the applicant had previously been presented including an armed robbery on 6 March 2005; an armed robbery on a fruit shop on 28 April 2005; a conspiracy to commit an armed robbery at Montrose on 7 July 2005 and a count of money laundering. It was also agreed that the applicant’s Holden Clubsport would not be the subject of a forfeiture order. The applicant took an active part in these negotiations – it was he who insisted on the return of his Holden Clubsport. The applicant obtained a significant benefit from the plea agreement and there can be little doubt that this influenced his decision to plead guilty.
[87]See R v El-Kotob (2002) 4 VR 546, 567–8 [88] (O’Bryan AJA); R v Sivov [2008] VSCA 100 (Neave and Kellam JJA and Coghlan AJA), [41]–[42] (Coghlan AJA).

It is also relevant that the applicant is no neophyte when it comes to the courts, judges and the criminal justice system. He has a lengthy criminal history with 65 prior convictions from six court appearances between 2 November 1992 and 16 December 1999. The convictions include obtaining property by deception, theft, burglary, culpable driving, possession of amphetamines, trafficking in a drug of dependence and assaulting police.

Whatever may be said more generally about the validity of Ipp AJA’s observation in KCH regarding the ‘incalculable’ effect of judicial advice about the prospects of a defendant being found guilty, such a presumption has little if any weight in the context of a defendant with the applicant’s familiarity with the criminal justice system.

The applicant has not established that there was any miscarriage of justice in respect of his conviction and he should not be allowed to withdraw his plea.

For the reasons given I would dismiss the application for leave to appeal against conviction. In view of the decision of the majority no useful purpose will be served in expressing any view in relation to the sentence appeal.

- - -

[2010] VSCA 343

16 December 2010