Gurappaji v The Queen
[2018] VSCA 187
•1 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0134
| KAVITHA GURAPPAJI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | PRIEST, BEACH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 August 2018 |
| DATE OF JUDGMENT | 1 August 2018 |
| MEDIUM NEUTRAL CITATION | [2018] VSCA 187 |
| JUDGMENT APPEALED FROM | R v Gurappaji (Unreported, County Court of Victoria, Judge Davis, 23 May 2017) |
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CRIMINAL LAW — Appeal — Conviction — Applicant pleaded guilty to cultivating a narcotic plant (cannabis) in a commercial quantity — Whether plea freely made — Whether applicant intended to admit guilt for offence she believed herself to be guilty of — Whether undue pressure from counsel to plead guilty — Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr J Sutton | SDR Law |
| For the Respondent | Ms D Piekusis | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
WEINBERG JA:
Introduction
Kavitha Gurappaji, the applicant, asserts that, despite having pleaded guilty to the charge in the County Court, her conviction for cultivating a narcotic plant (cannabis) in a commercial quantity[1] should be set aside. She thus seeks leave to appeal against her conviction.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.
In essence, the applicant claims that her plea of guilty was not freely made and that she did not fully understand the nature of the charge, and that the trial judge erred in refusing to permit her to withdraw her plea.[2] The grounds of appeal are formulated as follows:
[2]Reasons for Ruling, unreported, 23 May 2016, Judge Davis (‘Reasons’).
1. Her Honour erred in law in dismissing the Applicant’s application to withdraw her plea of guilty and in ruling that:
(a)the Applicant’s plea of guilty was freely made;
(b)that in entering a plea of guilty the Applicant intended by her plea to accept guilt to an offence of which she believed herself to be guilty; and
(c)the Applicant fully understood the nature of the charges and intended to admit she was guilty of them even if she believed she was not.
2. A miscarriage of justice would arise if the plea of guilty were permitted to stand having regard to:
(a)the evidence that the plea of guilty was not freely made;
(b)the evidence of the Applicant that in entering a plea of guilty she did not intend by that to accept guilt to an offence of which she believed herself to be guilty;
(c)the Applicant’s mental condition at the time the plea of guilty was entered; and or
(d)all the circumstances.
For the reasons that follow, we would refuse the application.
Governing principles
Before turning to the facts of the instant case, it is convenient to set out the principles that guide the Court where it is sought to set aside a conviction following a plea of guilty.
At the outset, it should be noted that the language of s 276 of the Criminal Procedure Act 2009 departs from that found in the common form criminal appeal statutes (under which the majority of cases in this area have been decided). Pursuant to s 276(1), this Court is required to allow an appeal against conviction if the appellant satisfies the Court that as the result of an error or an irregularity in, or in relation to, the trial, or for any other reason, there has been a substantial miscarriage of justice.[3] Many cases decided under the common form statutes have held that an appeal against conviction after a guilty plea will be entertained only in exceptional circumstances.[4] In our opinion, those cases will continue to provide a useful guide to the kinds of situations in which appellate intervention is warranted in a case such as this, notwithstanding that s 276 departs from the language of the common form statutes.
[3]Cf Weston (a pseudonym) v The Queen (2015) 48 VR 413, 426 [60] (Redlich JA), 447–8 [120] (Whelan and Kaye JJA); Gilbert v The Queen [2018] VSCA 49, [47] (Whelan, Beach and Kyrou JJA).
[4]R v Murphy [1965] VR 187; R v Vella (1984) 14 A Crim R 90; R v Kardogeros [1991] 1 VR 269; R v O’Connor (1992) 59 A Crim R 278, 283; R v Parsons [1998] 2 VR 478 (on appeal Parsons v The Queen (1999) 195 CLR 619).
Forde[5] is generally regarded as being the seminal case in this area of discourse. Avory J observed:[6]
A plea of guilty having been recorded, this court can only entertain an appeal against conviction if it appears: (i) That the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or (ii) that upon the admitted facts he could not in law have been convicted of the offence charged.
[5]R v Forde [1923] 2 KB 400.
[6]Ibid, 403.
It has been held that the propositions formulated by Avory J ‘will be found to provide a sound guide to be followed in most, if not all, cases’,[7] but they are not exhaustive. Thus, in Murphy, Sholl J said:[8]
The question for the court always is whether there has been a miscarriage of justice, and if there has, the court is subject to a mandatory obligation to set aside the conviction.
Most of the reported cases can, it is true, be fitted into the principles formulated in R v Forde [1923] 2 KB 400. But they should not be regarded as exhaustive of all possible cases of miscarriage of justice.
[7]R v Murphy [1965] VR 187, 188 (‘Murphy’).
[8]Ibid, 190.
That the criteria in Forde are not exhaustive is further illustrated by Meissner, in which Dawson J observed that:[9]
a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.
[9]Meissner v The Queen (1995) 184 CLR 132, 157 (‘Meissner’).
Very recently, in BDC,[10] Philippides JA summarised the applicable principles as follows:[11]
The following principles are relevant to a consideration as to whether a plea of guilty ought to be set aside:
(a) A plea of guilty, entered by a person who is of sound mind and understanding exercising a free choice in their own interests, will not be set aside on appeal unless the applicant demonstrates that a miscarriage of justice has occurred.[12]
(b) A person may enter a plea of guilty even though they do not believe that they are guilty of the offence for pragmatic reasons, such as, to avoid worry, inconvenience or expense, avoid publicity, to protect family or friends, or in hope of obtaining a more lenient sentence. But a plea entered on such a basis will not be set aside unless a miscarriage of justice is shown.[13]
(c) A miscarriage of justice may occur where it is demonstrated that the applicant did not understand the nature of the charge, or did not intend to admit guilt, or if, upon the facts admitted by the plea, the applicant could not in law be guilty of the offence, or the plea was induced by intimidation or improper conduct or fraud.[14]
(d) Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct, 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.[15]
(e) Applications to set aside a conviction on the basis that a plea of guilty should be set aside are approached with ‘caution bordering on circumspection’ because of the high public interest in the finality of legal proceedings and the principle that a plea of guilty by a person in possession of all the facts is normally taken to be an admission of each of the necessary legal elements of offence.[16]
[10]R v BDC [2018] QCA 132.
[11]Ibid, [6] (emphasis added).
[12][Meissner] at 141.
[13][Meissner] at 141, 157.
[14][Meissner] at 157.
[15][Meissner] at 143.
[16]R v Liberti (1991) 55 A Crim R 120 at 122.
Imprudent and inappropriate advice from counsel may lay the foundation for a successful appeal against conviction following a plea of guilty.[17] Convictions were thus set aside following a plea of guilty in O’Connor,[18] where the applicant had pleaded guilty following erroneous legal advice as to the elements of the relevant offence; and also in O’Sullivan,[19] where the accused pleaded guilty after police had manufactured a false confession, but the accused’s legal advice was that the confession could not effectively be challenged.[20]
[17]R v Wilkes (2001) 122 A Crim R 310. Compare R v KCH (2001) 124 A Crim R 233; R v Pugh (2005) 158 A Crim R 302.
[18]R v O’Connor (1992) 59 A Crim R 278.
[19]R v O’Sullivan (2002) 128 A Crim R 371.
[20]Improper pressure exerted by a trial judge may also result in a conviction being set aside following a guilty plea. See R v KCH (2001) 124 A Crim R 233; Guariglia v The Queen (2010) 208 A Crim R 49.
The application to withdraw the plea
Turning to the facts of this case, an indictment[21] was filed in the County Court (‘the trial indictment’) charging the applicant with trafficking in not less than a commercial quantity of a drug of dependence, cannabis, at Bentleigh East (charge 3); cultivating not less than a commercial quantity of a narcotic plant, cannabis, at Bentleigh East (charge 4); possessing a drug of dependence, cannabis, at Bentleigh East (charge 5); and cultivating a narcotic plant, cannabis, at Clyde (charge 7).[22]
[21]Indictment No C1409910.
[22]The trial indictment charged the applicant’s husband, Amrit Singh, with trafficking in a drug of dependence, cannabis (charge 1); possession of a drug of dependence, cannabis (charges 2 and 6); trafficking in not less than a commercial quantity of a drug of dependence, cannabis (charge 3); cultivating not less than a commercial quantity of a narcotic plant, cannabis (charge 4); and cultivating a narcotic plant, cannabis (charge 7).
The trial indictment charged the applicant and her husband with offences connected to the growing of cannabis at two properties, located respectively in East Boundary Road, Bentleigh East, and in Moores Road, Clyde. Charges 3 and 4, trafficking and cultivation of not less than a commercial quantity of cannabis, concerned a cannabis crop located by police at the East Bentleigh property on 31 October 2014. A search of the house on the property revealed a total of 287 cannabis plants at different growth stages, including 97 seedlings. A drying room contained 28.31 kilograms of dried cannabis laid out on large tables. There was a hydroponic set up consisting of 118 light shrouds and globes; 122 electrical transformers; an irrigation system; power boards; air ducts; gloves; bags of soil; and two 20 litre containers of liquid fertiliser. An electrical bypass was in place that bypassed the electricity meter and prevented it from reading the large electrical load that was drawn by the hydroponic system. A neighbour told police that the applicant had lived in the house for several years. Inside the house police found documents connecting the applicant to the property. Police also found the applicant to have a front door key to the house in her handbag. The charge of possessing cannabis, charge 5, related to 3.5 grams of cannabis found on the applicant in a ‘pat down’ search. Charge 7, cultivating cannabis, arose out of a second police search on 31 October 2014, conducted at the Clyde property. It revealed that a number of rooms had been set up for the hydroponic cultivation of cannabis. Police located 12 cannabis plants in the bathroom and 18 cannabis plants in the third bedroom. In other rooms, the hydroponic arrangement had been or was being dismantled. Police also found 96 light shrouds and electrical transformers; 38 globes; exhaust fans; an air filtration system; an irrigation system; power boards; fertiliser; and gloves. There was also a bypass in place at the property that prevented the electricity meter from recording any usage. The Clyde property was owned by the applicant’s former partner, Richard Phillips. Police found a number of documents connecting the applicant to the property, including a purported lease of the property which named her as ‘Lessor’. Some months earlier, on 28 January 2014, the applicant telephoned police and reported that her dogs had been stolen from the Clyde property. The next day, police attended the property and observed a number of items in the sheds that are typically used in the cultivation of cannabis (such as light shrouds, carbon filters and air ducts).
The applicant’s trial was fixed for 18 January 2016. Discussion between counsel for the prosecution and defence during the morning of that day resulted in the parties announcing to the trial judge after the lunchbreak that day that the matter had resolved. A new indictment[23] (‘the plea indictment’) containing two charges — cultivating not less than a commercial quantity of a narcotic plant, cannabis, at Bentleigh East (charge 1); and possessing a drug of dependence, cannabis, at Bentleigh East (charge 2) — was filed accordingly. The applicant pleaded guilty to both charges on the new indictment, and the matter was adjourned to 15 March 2016 for a plea hearing.
[23]Indictment No E13630832.
By a letter to the Registrar of the County Court dated the next day, 19 January 2016 — apparently forwarded by facsimile from the Dame Phyllis Frost Centre on 20 January 2016 — the applicant made a request to withdraw her plea of guilty. We will not set out the letter’s content at length,[24] but the tenor of it is that the applicant pleaded guilty ‘under tremendous pressure’, having been coerced into doing so by her counsel and solicitor. Thus, in one part, the applicant asserted:
… On returning to prison, the truth of what I was coerced to do hit home very hard. Threats of uncertainty to the jury’s reaction to being married to a guilty man,[[25]] loss of property (farm)[[26]] and leaving me with no legal representation at the time of trial if I did not take the plea were made.
[24]See Reasons, [16].
[25]This is a reference to Amrit Singh, who, quite apart from the cannabis crops, was charged with trafficking and possessing cannabis (charges 1 and 2 on Indictment No C1409910), relating to 21 cannabis plants weighing 6.75 kilograms found in a van that he had been driving.
[26]This is a reference to the property in Clyde.
An application for change of plea proceeded over several days, and culminated in the judge refusing the application on 23 May 2016.
In support of her application, the applicant relied on an affidavit that she affirmed on 11 February 2016, and on the contents of an unsworn affidavit ostensibly dated 16 March 2016. She also gave oral evidence. Further, the judge heard evidence from the applicant’s trial counsel, Russell Hammill (referred to by the applicant as ‘Russ’), and instructing solicitor, Saige Exner (referred to by the applicant as ‘Saige’); and also from her friend Marie Taylor, and her former partner, Richard Phillips.[27]
[27]It is unnecessary to summarise the evidence of Ms Taylor or Mr Phillips. For a brief precis of it, see Reasons, [30]–[35].
We need not set out the applicant’s evidence, as contained in her affidavits and given orally, in extensive detail. It is sufficient to note that she asserted (among other things) that:
· in a meeting with Mr Hammill and Ms Exner on 13 January 2016, ‘Russ told me that my best option was to plead guilty’; ‘the police consider me a gang leader’; and ‘his colleagues … were laughing about my choice to proceed to trial’;
· in a telephone call on 14 January 2016, Mr Hammill ‘implored me to consider a guilty plea’;
· in another telephone call with Ms Exner on 15 January 2016, she told Ms Exner that she wanted to defend the charges and asked that Ms Exner apply for an adjournment; but that, notwithstanding that Ms Exner told her that an adjournment would not be granted, and that ‘we could still go to trial’, ‘I felt that [Ms Exner] was insisting that I instead choose to plead guilty’;
· on the morning of 18 January 2016, ‘Russ said, “Look, we’ve seen the evidence. We’re telling you just plead guilty”’; ‘Russ recommended that I meet with a psychologist, tell him or her that I knew what my tenants and husband were up to [at the East Bentleigh property] but felt forced to let them continue’, to which she responded, ‘I can’t lie like this’; and she pleaded guilty because ‘my legal representatives had asked me to say guilty’, in circumstances in which:
I was then told by Russ that he would not be able to represent me if I did not enter a plea of guilty. I was scared that I would be left to defend a trial without legal representation. I believed that my options were to plead guilty and continue to be legally represented or plead not guilty and represent myself at trial. I did not believe that I was capable of representing myself and proceeding with the trial and made the decision to plead guilty to avoid being unrepresented.
· ‘Russ told me that he could not continue to act for me on two occasions that morning’; on the first occasion ‘Russ told me that I should plead guilty’, and ‘[w]hen I responded that I wished to plead not guilty, he responded that he could not continue as my barrister if I refused to plead guilty’; on the second occasion:
When I was in the dock, Russ approached me with a document in his hand and said ‘Sign this and plead guilty, if you don’t I will have to step down as counsel’. I did not read this document. I signed the document because I was afraid that if I refused to sign it I would be left to appear at my trial without counsel or a lawyer.
The applicant’s counsel, Mr Hammill, gave sworn evidence that, during their first conference, the applicant indicated that she wanted to contest the charges on the basis of her lack of knowledge of any cannabis cultivation. Mr Hammill thought, however, that her instructions sounded unconvincing, and he told the applicant that some of his colleagues had been sceptical of her defence (which proceeded on the basis that, notwithstanding her position, she knew nothing about cultivation going on in the house).
Mr Hammill testified that on the morning of the trial, 18 January 2016, following his advice to her about the strength of the prosecution case, and the unlikelihood of a jury accepting the proposed defence that she was framed by police, the applicant’s position changed. Thus, the applicant’s position altered from one where she said that she had no knowledge whatsoever of any cannabis cultivation, to one where she accepted that she had broad knowledge of the cultivation (albeit that she insisted that her role was not a principal one). The applicant gave instructions that she would plead guilty on the basis that she knew in a broad way what was taking place in the house, the extent of that knowledge being a matter for the plea in mitigation. Mr Hammill said that the applicant clearly understood that she would receive a discount on her sentence for pleading guilty.
Importantly, Mr Hammill denied pressuring the applicant in any way. He agreed that he explained to the applicant that once she told him that she was pleading guilty on the basis of knowledge, he would not be able to continue represent her if she subsequently changed her mind and decided to plead not guilty on the basis of an asserted lack of knowledge. Mr Hammill denied, however, telling the applicant that she would have to represent herself.
Mr Hammill testified that, after discussion during the morning of 18 January 2016 — during which he advised the applicant to resolve the case and plead guilty — he felt that she was able to think critically. They discussed the proposed resolution of the case, the key aspects of which included withdrawal of the most serious charge and limiting the cultivation to one house only (which would remove the concerns that the applicant had about forfeiture of the Clyde property). The applicant, he said, was well across the materials and impressed him as someone who could think critically. Mr Hammill and Ms Exner gave the applicant time over lunch to consider her position, and, shortly before court was to resume, they once more conferred. The applicant instructed him that she would plead guilty. He and Ms Exner then showed a copy of the proposed plea indictment to the applicant and she signed it.
Ms Exner, the applicant’s former solicitor, gave evidence and produced her file notes of relevant conversations. She said that, on 13 January 2016, she and Mr Hammill conferred with the applicant in prison and went through the prosecution brief with her. The applicant provided innocent explanations for various aspects of the incriminating evidence, during which Mr Hammill at different times pointed out problems with her instructions. Ms Exner said that the applicant was not entirely of a mind to contest the charges; and, as she and Mr Hammill were leaving, the applicant indicated that she was looking to resolve the matter, asking Mr Hammill to ascertain the prosecution’s ‘bottom line’. In a telephone conversation of 15 January 2016, Ms Exner told the applicant what the bottom line was — Mr Hammill having obtained it in the meantime — and the applicant became upset.
Ms Exner’s notes of 18 January 2016 reflect the fact that Mr Hammill gave strong advice to the applicant in favour of pleading guilty, but also that he told her that it was her right to plead not guilty if she wished. Mr Hammill explained to the applicant that if she were to be sentenced following a jury verdict of guilty, her sentence would likely be heavier than if she were to be sentenced after a plea of guilty. The advice to her was that if her instructions were that she did not know anything at all about what was going on in the house, she would have to go to trial (the prosecution case at trial including a charge of trafficking). At one point, the applicant expressed concern about additional matters that police were investigating. She asked Mr Hammill and Ms Exner to talk to the informant about this, and she indicated that she wanted all of the additional matters under investigation to be dealt with as part of the plea arrangement. The applicant asked them once more to obtain the prosecution’s bottom line.
At 10.30 am, when court convened, counsel asked for time to have discussions. Ms Exner said that, after those discussions, she and Mr Hammill conferred with the applicant in the cells between 11.54 am and 12.30 pm. It was explained to her that, upon a plea of guilty, a number of charges would be taken off the indictment, they being the charge of trafficking in a commercial quantity relating to the Bentleigh East address, and the cultivation charge relating to the property in Clyde. The two charges on the plea indictment would simply be a cultivation charge relating to the Bentleigh East property and a possession charge. Mr Hammill explained to the applicant that if she accepted the plea offer, he would seek a psychological report. He explained to her that if she pleaded guilty, she would not be in a position to later tell the psychologist that she knew nothing of what was going on in the house. Mr Hammill also informed the applicant that if she were assessed for a Community Correction Order (‘CCO’), she could not tell the assessor that she only pleaded guilty because she was advised to do so. Ms Exner said that by this stage the applicant had decided to plead guilty. The applicant told them that, due to parole considerations, she wanted a ‘straight sentence’ and not a CCO. She instructed them to accept the plea offer. Ms Exner said that she confirmed with the applicant that she was giving them instructions to accept the plea offer, and the applicant said, ‘Yes, now go’.
Ms Exner testified that at 2.30 pm, just before court resumed, she and Mr Hammill approached the applicant in the dock. The applicant repeated that she would plead guilty. They took the applicant through a copy of the plea indictment, and asked her to sign it as an acknowledgement (which she did).
The day after she pleaded guilty, on 19 January 2016, the applicant telephoned Ms Exner, told her that she ‘could not live with this’, and said that she did not want to lie to a psychologist. Ms Exner said that the applicant told her that she had made the wrong decision. The applicant did not, however, complain about being forced to plead guilty.
Significantly, Ms Exner denied threatening the applicant, or pressuring her at any stage to plead guilty. Nor did she observe Mr Hammill do so. Ms Exner expressed the view that there was nothing inappropriate in the legal advice that Mr Hammill gave the applicant. She said that he had made it clear to the applicant that he was happy to do whatever she wanted, including running a trial. Ms Exner said that, between 9.15 am and 12.30 pm on the day of the trial, she and Mr Hammill worked to try to resolve the matter on the applicant’s behalf in accordance with her instructions. Her evidence was that if the applicant had said she wanted to plead not guilty, Mr Hammill would have run the trial. The applicant’s plea, Ms Exner said, was an informed one.
Counsel for the applicant made two principal submissions to the judge. First, counsel submitted that the applicant did not make her plea of guilty freely, since she made it in the belief that she risked facing trial without legal representation if she pleaded not guilty. Secondly, and alternatively, counsel submitted that the judge should accept that the applicant did not intend by her plea to accept guilt for an offence of which she believed herself to be guilty.
In refusing the application to withdraw the plea of guilty, the judge observed:[28]
[28]Reasons, [53]–[63].
The evidence of Ms Exner and Mr Hammill is in similar terms, and is largely supported by the contemporaneous notes made by Ms Exner of her conferences with [the applicant] in Mr Hammill’s presence, and her telephone conversations with [the applicant]. I therefore prefer their evidence to that of [the applicant] wherever her evidence conflicts with theirs.
I reject the two principal submissions made on [the applicant]’s behalf for a number of reasons.
The first submission was that the plea was not freely made because she made it out of fear that, if she pleaded not guilty, she would face trial unrepresented. On the material before me, I consider that there was nothing fleeting about the discussions concerning a possible plea of guilty. The discussions commenced a week before the date of trial, in prison, then continued at length on the morning of the trial. In the discussions, it is clear that it was the accused who sought the Crown’s bottom line; it was she who gave instructions about seeking consolidation of outstanding matters as part of any resolution; and it was she who expressed her wishes concerning imprisonment and parole or community corrections order. During the morning of the trial, she conferred at length with her legal advisers. There is no evidence upon which I could conclude that discussions were rushed, or that there was any pressure, intimidation or coercion from her lawyers. [The applicant] had been over the brief with a fine tooth comb prior to meeting her lawyers, and was able to express all the issues she was taking with some of the individual items of evidence being relied upon by the Crown.
Critically, Ms Exner’s notes indicate that on two or three occasions overall Mr Hammill told [the applicant] that he would run the trial for her if those were her instructions. Ms Exner, in telephone conference with [the applicant] on 15 January 2016 asked [the applicant] to consider carefully what she wanted to do on 18 January 2016, whether to adjourn the trial, plead guilty, or proceed with the trial. Ms Exner told [the applicant] that she had discussed an adjournment with Mr Hammill and he said he was happy to make the application but that he felt it might not advance things. ...
I therefore reject the first submission made in support of the application.
The second submission made in support of the application was to the effect that [the applicant] did not intend by her plea to accept guilt of an offence of which she believed herself to be guilty.
I reject this submission for the following reasons.
I am not in a position to find, one way or the other, whether [the applicant] was actually guilty or not, and so I cannot decide whether she believed in her guilt. To make that finding would involve undertaking the task that would have been undertaken by the jury at her trial.
However, I am able to find, and to conclude, that the circumstances of the plea do not, viewed objectively, raise a doubt about her consciousness of guilt. I consider, on the material before me, that [the applicant] was assiduously represented by her former lawyers, that she was very familiar with the details of the Crown case, that she debated her concerns about some aspects of the Crown case with her lawyers, that after discussions over a number of hours on the morning of the trial, and briefly after lunch, she made a conscious and voluntary decision to plead guilty on the basis of the strong advice that it was in her interest to do so, given the strength of the Crown case and the untenability of her defence. It was [the applicant] who instructed her lawyers to obtain the Crown’s bottom line. They did so. She made her plea in circumstances where the most serious charge being faced (that of trafficking in a commercial quantity of cannabis), and a cultivation charge (relating to the property at Clyde) were both withdrawn. She was taken through the fresh plea indictment by her lawyers in court and then, in their presence, signed a copy of it. There is no suggestion that she did not understand its contents.
I am satisfied that [the applicant] fully understood the nature of the charges, and intended to admit that she was guilty of them, even if she believed that she was not. There was no submission made that she could not, in law, have been guilty of the offences. There is no suggestion that her plea was induced by intimidation, by improper inducement, or by fraud. She was entitled to choose to plead guilty in circumstances where she would plead to lesser charges and, therefore, receive a lesser sentence.
I accept that [the applicant] regretted her decision to plead guilty and felt uncomfortable about it, and that she sent a letter to the Court two days later expressing her regret along with a wish to change her plea. This fact, however, is not sufficient, having regard to the matters canvassed above, to warrant a finding that it would be a miscarriage of justice to hold her to her plea.
The applicant’s submissions in this Court
In this Court, the applicant’s counsel submitted that there was no evidence before the trial judge that established that the applicant believed herself to be guilty of the offence of cultivation to which she pleaded guilty. The effect of the applicant’s evidence was, it was submitted, that her plea was not freely made; that she was not guilty; and that she was ‘coerced’ into entering the plea. Counsel contended the plea was equivocal, and made in circumstances suggesting that it was not a true admission of guilt. At its highest, the plea was entered with the ‘desire to gain a technical advantage’.[29]
[29]Citing Maxwell v The Queen (1996) 184 CLR 501, 511 (Dawson and McHugh JJ).
The applicant also sought to rely on ‘fresh’ evidence. After the applicant was refused leave to withdraw her plea of guilty, new solicitors and counsel acted for the applicant in relation to her plea in mitigation. Ultimately, the applicant was sentenced to 30 months’ imprisonment on the charge of cultivating a commercial quantity of cannabis, and a non-parole period of 24 months was fixed.[30] In preparation for the sentencing plea, the applicant’s new solicitor obtained two reports from Dr Erin Redmond, consultant psychiatrist, dated 17 November 2016 and 12 May 2017. It was submitted that the contents of these two reports ‘contain fresh evidence which could be considered in relation to the Applicant’s proposed appeal’, since ‘the mental state of the Applicant at the time of her entering her plea [sic.] of guilty is a relevant consideration in determining whether a miscarriage of justice may result from allowing that plea to stand’.[31]
[30]DPP v Gurappaji [2017] VCC 689 (Judge Davis). A fine of $777.30 was imposed on the charge of possessing cannabis.
[31]Counsel cited R v Carkeet [2009] 1 Qd R 190, 194 [24] (Fraser JA); and R v Pain [2016] VSC 532 (Dixon J).
Discussion
The applicant obtained a significant advantage by pleading guilty. Thus, as part of the plea arrangement agreed with the prosecution, the applicant avoided trial on a serious charge of trafficking in a drug of dependence in not less than a commercial quantity — which carries a maximum sentence of 25 years’ imprisonment[32] — and a charge of cultivating cannabis at Clyde — thereby avoiding the risk of forfeiture of that property.
[32]Drugs, Poisons and Controlled Substances Act 1981, s 71AA.
Based on the evidence of the applicant’s former counsel and solicitor, we have no hesitation in concluding — as did the primary judge — that the applicant fully understood the nature of the charge to which she was pleading guilty, and that by her plea she intended to admit her guilt. The suggestion that the applicant’s plea was not made freely, and that she was somehow coerced into making it by the conduct of her legal advisors, must be rejected. As did the judge, we would accept the evidence of her counsel and solicitor that the applicant was not pressured, intimidated, or otherwise coerced into pleading guilty. In this regard, we do not consider that the reasoned advice of her counsel to plead guilty — based, as it was, on his assessment of the strength of the prosecution case and the weakness of the defence — involved any harassment, or any improper pressure or inducement. The applicant plainly is an intelligent woman who, so the evidence establishes, had a solid grasp of the evidence and the nature of the prosecution case against her. Viewed objectively, the circumstances of the plea do not raise any doubt as to the applicant’s consciousness of her guilt. Thus, in our opinion, it was certainly open to the judge to find that the applicant fully understood the nature of the cultivation charge, and intended to admit that she was guilty of it. The inference is compelling, in our view, that by pleading guilty the applicant sought to achieve the twin advantages of a reduced sentence — including avoiding the possibility of being convicted and sentenced for trafficking a commercial quantity of drugs — and averting the risk of forfeiture of the Clyde property.
No error in the primary judge’s decision has been established. Indeed, on the available material, her Honour’s ruling plainly was correct.
Moreover, there is nothing in the ‘fresh evidence’ point.
In her report of 17 November 2016, Dr Redmond diagnosed the applicant as suffering from Recurrent Major Depression — which was in remission — and as having ‘Personality traits of narcissism’. She stated:
I have read a number of previous psychiatric assessments contained in the prison medical records which were performed at various times during [the applicant’s] incarceration. She provides a consistent history and has frequently impressed as somewhat grandiose, somewhat contemptuous; and entitled, as well as litigious at times. These themes were repeated during my assessment with her. This impressed more as part of her personality style (narcissistic features) rather than a disorder of mood.
There have been considerations of the presence of bipolar disorder, hypomania, and personality disorder. The diagnosis of Borderline Personality Disorder made while she has been in custody has been considered, as well as a personality style characterised by narcissistic and anti-social traits.
In her second report, dated 12 May 2017, Dr Redmond expressed the view that the applicant’s mental state had ‘deteriorated significantly’ since her previous assessment. It was Dr Redmond’s opinion that the applicant ‘is currently in the early stages of a depressive relapse’.
There is nothing in either of Dr Redmond’s reports, however, that would support the contention that the applicant’s capacity to make a free and informed choice to plead guilty was in any way compromised by her mental condition. Indeed, it is noteworthy that, at the plea hearing on 26 May 2017, no further application to re-open the applicant’s plea was made based on Dr Redmond’s reports, notwithstanding that they were in the hands of the applicant’s current counsel. The content of the reports is neither new nor fresh.[33]
[33]R v Nguyen [2006] VSCA 184, [36].
The submissions based on the fresh evidence — so-called — are wholly devoid of merit.
Conclusion
Leave to appeal against conviction must be refused.
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