Hough v The State of Western Australia
[2018] WASCA 20
•23 FEBRUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HOUGH -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 20
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 16 JANUARY 2018
DELIVERED : 23 FEBRUARY 2018
FILE NO/S: CACR 182 of 2017
BETWEEN: SHANE LEWIS HOUGH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
Citation :HOUGH -v- THE STATE OF WESTERN AUSTRALIA [2017] WADC 111
File No :IND 1917 of 2015
Catchwords:
Criminal law - Appeal against conviction - Sexual penetration without consent - Stealing - Where appellant pleaded guilty in the Magistrates Court and was committed for sentence - Whether a miscarriage of justice was occasioned by the appellant not being permitted to change his plea of guilty - Misunderstanding the nature of the charge - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 99
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A Robson
Respondent: Mr L M Fox
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Hough v The State of Western Australia [2017] WADC 111
Meissner v The Queen (1995) 184 CLR 132
Vella v The State of Western Australia [2006] WASCA 129
JUDGMENT OF THE COURT:
Summary
The appellant seeks leave to appeal against his convictions of sexual penetration without consent and stealing. He contends that a miscarriage of justice was occasioned by his not being permitted to change his plea of guilty, in circumstances where he did not understand the nature of the charges when he pleaded guilty. For the following reasons, that ground has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
Procedural history
On 31 March 2015, the appellant was charged with one count of sexually penetrating the complainant without her consent,[1] and one count of stealing the complainant's mobile phone.[2] On 11 December 2015, the appellant pleaded guilty to both counts, and was committed for sentence to the District Court of Western Australia.
[1] Contrary to s 325 of the Criminal Code (WA).
[2] Contrary to s 378 of the Criminal Code.
An indictment charging the appellant with those two offences was lodged with the District Court on 20 January 2016.
Before he had been arraigned on the indictment, the appellant made an application, dated 27 April 2016, for an order that he 'be permitted to change his plea from guilty to not guilty'. In support of that application, the appellant filed his own affidavit and an affidavit of Mr Alan Camp, a legal practitioner who appeared for the appellant when he pleaded guilty in the Magistrates Court. On 22 June 2016, after hearing oral evidence from both witnesses and submissions, O'Neal DCJ dismissed the application. The appellant was remanded for sentencing.
The matter came before Sweeney DCJ on 17 March 2017, at which time the appellant's counsel, Mr Kenneth Bates, sought leave to withdraw on the ground that his relationship with the appellant had broken down. At that time her Honour noted that the procedure in s 99 of the Criminal Procedure Act 2004 (WA) had not been followed, and adjourned the matter so that the appellant could obtain different representation.
On 19 April 2017, the appellant filed an application seeking to have a plea of not guilty entered on his behalf under s 99(5) of the Criminal Procedure Act. At that stage, the appellant was represented by Ms Sarah Oliver. This application, which relied only on s 99(5)(a) and not s 99(5)(b) of the Act, was heard by Goetze DCJ on 20 July 2017. After reserving his decision, on 23 August 2017 Goetze DCJ dismissed that application and published written reasons for that decision.[3]
[3] Hough v The State of Western Australia [2017] WADC 111.
After Goetze DCJ dismissed the application, the prosecutor read the following facts to the court:[4]
[4] ts 141 ‑ 144.
At the time of the offences the offender was a 55-year old male, 190 centimetres tall and of heavy build while the victim was a 24-year old female, 160 centimetres tall and of medium build. In the early hours of the morning on Wednesday, 31 December 2014, the victim had been out drinking with friends and was walking to the Perth train station. She went into an alleyway along Elder Street in West Perth.
The offender was conducting traffic management duties on the Hay Street Bridge. He left his vehicle for a short period of time and walked into the nearby alleyway where he came across the victim. The offender spoke to the victim and asked where she was going. The victim replied that she was going to the train station. The offender told the victim that she was not going anywhere. Without warning he pushed her backwards, causing her to collide with the wall of the nearby building.
The offender struggled with the victim and she kicked and screamed. During the struggle, the offender forcefully digitally penetrated the victim's vagina and that sexual penetration without consent is count 1 on the indictment. The offender leaned over the victim and used his weight to hold her down. She continued to kick and fight and managed to get back on her feet.
The victim ran away - excuse me - the victim ran from the alleyway leaving her handbag and some items of clothing, including shorts and underwear behind. The victim made her way to the Duxton Hotel on St George's Terrace where she reported what had happened to her. The police were called and attended the hotel.
The offender collected the handbag and clothing before returning to his vehicle. He told his work colleague that he had found the bag in an alleyway near a puddle of what he thought was urine and that he believed someone had gone to the toilet in the alleyway leaving their underwear and bag behind.
The offender looked through the handbag and located the victim's identification, including her address. He told his colleague that he might drop the bag home to her - excuse me - to the owner. Later that morning, the offender drove to the victim's home address. On the way to her address, the offender removed the victim's blue Samsung Galaxy 5 mobile telephone from the bag and subsequently removed the battery and memory card from the telephone. He also threw the victim's shorts and underwear out onto the Warwick Road off ramp from the Mitchell Freeway.
On arriving at the victim's address, the offender handed the victim's bag and its contents other than the mobile phone to the victim's father. The victim subsequently went through her bag and discovered that her mobile telephone was missing.
As a result of subsequent inquiries with the victim's father and with the offender's work colleagues, police attended the offender's home address at approximately 3.30 pm that afternoon. The offender initially denied having the victim's phone but after a discussion with police, he directed the police to his parked vehicle where the mobile telephone was located in the centre console with the battery removed.
The offender denied removing the battery from the phone to prevent it being tracked and claimed to have removed the phone from the bag in order to look through it for a number or an address. He denied any involvement in the sexual assault on the victim and told the police that he found the bag on the ground when he went down the side street.
He told police about having thrown the victim's underwear onto the Warwick Road off ramp in order to avoid embarrassment for the victim. The mobile telephone was returned to the victim who subsequently discovered that the memory card was missing from the phone.
The following day, 1 January 2015, police returned to the offender's home to ask him about the missing card. The offender told police that he had removed the memory card from the mobile telephone and thrown it in a bin because he believed it to be a SIM card and did not want police to track it. He told police that following their departure from his address the previous day, he had taken the memory card to work and thrown it onto the freeway.
A subsequent DNA report obtained by police indicated the presence of the offender's DNA profile on swabs taken from each of the victim's shoulder[s] as well as from the complainant's shorts and underwear. Police interviewed the offender on video on 31 March 2015 where he declined to make any comment. Off camera, having been shown the DNA findings, he told police that he had found a drunk girl in the alleyway on her back and that he had helped her up, in the course of which putting his hand on her shoulder.
He had asked her if she was okay, following which she screamed and ran from the alleyway and left her things behind. The offender was charged with the present offences and released to bail.
A further subsequent DNA report indicated the presence of the offender's DNA profile on the outside front and outside back of the victim's dress.
At this time, Ms Oliver confirmed that the facts which the prosecutor had just read to the court were not materially different from the material facts disclosed to the appellant under s 35 of the Criminal Procedure Act at the time the appellant pleaded guilty to the offences charged in the Magistrates Court.[5] After being informed that the appellant would not enter a plea of guilty, Goetze DCJ entered a plea of guilty on the appellant's behalf, without arraigning him, under s 99(4) of the Criminal Procedure Act.
[5] ts 144.
After Ms Oliver made submissions in mitigation, the prosecutor noted that the application under s 99(5) had been withdrawn in relation to count 2 on the indictment, which concerned the stealing offence. The appellant was arraigned on count 2 and pleaded guilty to the stealing charge. Goetze DCJ then entered a judgment of conviction on count 2.[6] His Honour then proceeded to sentence the appellant to 3 years' immediate imprisonment on count 1, and to 3 months' immediate imprisonment on count 2. The sentences were ordered to be served concurrently, and the appellant was made eligible for parole.
[6] ts 150.
Statutory provisions
The relevant procedure for entry of a plea of guilty on a charge which must be tried on indictment is prescribed by various provisions of the Criminal Procedure Act.
Section 35(4) provides that:
When or as soon as practicable after a prosecution notice that contains one or more indictable charges is served on an accused, the prosecutor must serve the accused with the following:
(a)a written statement of the material facts of each such charge;
(b)an approved notice of the existence or non‑existence, as the case may be, of any confessional material of the accused that is relevant to each such charge;
(c)an approved notice that the accused does or does not have a criminal record, as the case may be;
(d)any document that is prescribed.
Section 39 provides for the procedure to be followed as soon as practicable after an accused's first appearance in the Magistrates Court on an indictable charge. One of the matters of which the court must be satisfied before requiring the accused to plead guilty to the charge is that the accused understands the charge and the purpose of the proceedings. Once the court is satisfied that the prosecutor has served the accused with the material referred to in s 35(4), it must proceed in accordance with s 40 or s 41 of the Act (as applicable). Section 41 applies if the charge is to be tried on indictment.
Section 41(2) requires that the Magistrates Court tell the accused that he or she is not required to plead to the charge, and give the accused the opportunity to plead to the charge. Under s 41(3), if the accused pleads guilty to the charge, the court, without convicting the accused, must commit the accused for sentence to a superior court with jurisdiction to deal with the charge.
Under s 83, a prosecution in the District Court is commenced by lodging an indictment that alleges the offence with the court.
Section 99(1) of the Act applies where:
(a)an accused pleads guilty to an indictable charge before a court of summary jurisdiction (the lower court); and
(b)the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and
(c)the accused is subsequently charged with the charge in an indictment.
In such a case, the accused must be required to plead to the charge in the indictment in the same manner as other accused (s 99(2)).
Under s 99(3), if the accused pleads guilty to the charge in the indictment then, unless s 99(5) applies, the District Court must accept the plea of guilty and deal with the accused according to law.
Under s 99(4), if the accused does not plead guilty to the charge in the indictment then the District Court must order the prosecutor to state aloud the material facts of the charge. The court must then consider whether it is satisfied that those facts do not differ materially from the material facts disclosed to the accused under s 35 at the time the accused pleaded guilty to the offence charged in the Magistrates Court. If the court is so satisfied then, unless s 99(5) applies, it must enter a plea of guilty on behalf of the accused and deal with the accused according to law. If the court is not so satisfied then it must enter a plea of not guilty on behalf of the accused and deal with the accused according to law.
Section 99(5) provides:
Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if:
(a)having considered:
(i)the material served on the accused under section 35 or 95; and
(ii)the facts stated by the prosecutor under section 129,
the court is satisfied that the accused could not have or may not have committed the offence charged; or
(b)having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
Section 99(7) provides that a plea entered by a court under s 99 on behalf of an accused has the same effect as if it had been actually pleaded.
The procedure in the District Court did not comply with the Criminal Procedure Act. The appellant was never arraigned on the sexual penetration charge. The procedure under s 99 ought to have been adopted before O'Neal DCJ. That process would have involved, relevantly, the court considering whether, within s 99(5)(b), it was satisfied that the plea before the Magistrates Court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings. However, in this appeal nothing turns on that irregularity.
The appeal to this court
The appellant now appeals to this court against his conviction on both counts on the indictment. The sole ground of appeal is that:
A miscarriage of justice was occasioned by the appellant not being permitted to change his pleas in circumstances where the integrity of his pleas of guilty [was] adversely affected by:
(a) the absence of advice as to the elements of the offence of sexual penetration;
(b) misunderstanding due to advice from the appellant's lawyer that touching was penetration; and
(c) the pleas not being attributable to genuine consciousness of guilt.
Counsel for the appellant in the appeal indicated that this ground did not seek to impugn the decision of Goetze DCJ to enter a plea of guilty to the sexual penetration count under s 99(4) of the Criminal Procedure Act. No question as to the operation of s 99(5)(a) of that Act[7] is raised by this appeal.
[7] As to which, cf Birch v The State of Western Australia[2017] WASCA 19; (2017) 51 WAR 454.
Leave to appeal on the sole ground of appeal was referred to the hearing of the appeal.
Appeals against conviction after a plea of guilty
The general principles governing appeals against a conviction entered after a plea of guilty were recently considered by this court in Gibson v The State of Western Australia.[8] The court adopted the following statement of Steytler P in Vella v The State of Western Australia:[9]
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice... The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like... However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed. (citations omitted)
[8] [2017] WASCA 141; (2017) 51 WAR 199 [149] ‑ [156].
[9] Vella v The State of Western Australia [2006] WASCA 129 [26].
The appellant did not seek to adduce any additional evidence in the appeal, but rather sought to rely on the record of proceedings before the District Court. In essence the appellant sought to establish the existence of a miscarriage of justice based on the well‑established ground that he did not understand the nature of the charge to which he pleaded guilty.[10]
[10] Appeal ts 4.
Disposition - sexual penetration offence
The principal difficulty which the appellant faces in relation to his conviction of count 1 on the indictment, alleging sexual penetration without consent, is the findings and evidence in the District Court indicating that he did understand the nature of the charge when he pleaded guilty to that offence in the Magistrates Court.
In the course of his reasons for dismissing the appellant's application to change his plea, O'Neal DCJ found that:
The accused accepted that he knew the nature of the accusation or the charges against him. He had in fact been provided with a statement of material facts. In particular, he knew that the victim was saying that he had put his finger in her vagina. He had been given the statement of material facts, as I've said. (ts 52)
Later, O'Neal DCJ found that the appellant understood the nature of the sexual penetration charge and intended to plead guilty hoping for the advantage of a discounted sentence and to get the matter over with.[11] Such a motivation did not invalidate the plea. As Dawson J observed, in an often cited passage in Meissner v The Queen:[12]
It is true that 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.
[11] ts 54.
[12] Meissner v The Queen (1995) 184 CLR 132, 157.
The finding by O'Neal DCJ that the appellant understood the nature of the sexual penetration charge when he pleaded guilty to it in the Magistrates Court was supported by the evidence before his Honour.
The appellant's affidavit before O'Neal DCJ deposed that, at the time he pleaded guilty, he was not sure exactly what the charge of sexual penetration meant. The effect of the appellant's affidavit was that he only understood during an interview with a psychologist on 22 February 2016 that sexual penetration meant inserting his finger in the complainant's vagina. However, the appellant retreated from that position during the course of cross-examination.
In cross‑examination, the appellant accepted that police had served him with a statement of material facts on 31 March 2015.[13] That statement alleged that, during a struggle, the appellant 'forcefully digitally penetrated the complainant's vagina'.[14] The appellant gave the following evidence in relation to a meeting with Mr Camp, before he pleaded guilty, on 11 December 2015:[15]
And what was your understanding of what the charges were against you?‑‑‑Well, from what it – what it says there, that – that – that I was being charged with forcibly putting fingers into her vagina. That's what – that's what it says there. I just go with what it says.
Okay. So at that meeting you understood that that was the nature of the sexual penetration charge, that it related to fingers in the vagina?---Well, it says there that - yeah, that's what it says. So my - look, I - I knew, like, that - that I didn't touch her and if I had have and it would have - and it was an accident, but - - -
O'NEAL DCJ: Yes. What Ms Mattocks is putting to you - - -?---Yeah.
- - - is that at this that she's talking about you knew that the accusation was that a finger or fingers had gone into her vagina?---That's what they accused me of, yes. Sorry, yes.
MATTOCKS, MS: Yes. But that was - - -?---That's what they - - -
You knew that was the charge the police had charged you with - - -?‑‑‑That's - that's - they were accusing me - - -
- - - and that was the accusation?---That was their allegation, yes.
Yes. And you knew that that's what the allegation was?---Well, I just - yeah, that's what the - that they're saying to me that's what it was, yeah.
[13] ts 31.
[14] Exhibit 3.
[15] ts 33 ‑ 34.
Later, when asked why he pleaded guilty, the appellant responded:[16]
Because I wanted to get this out of my life, to get it over and done with. Because I suffer from severe anxiety attacks and - and depression and it was causing me anxiety attacks and depression. And I just wanted to get it over and done with. And the simplest and quickest way was to admit to guilty and then get a - a light sentence from the judge.
[16] ts 37.
The appellant was also asked about the complainant's statement, which was served on the appellant's lawyer in July 2015:[17]
And you were aware though from the victim's statement then that the allegation was that you digitally penetrated her.
O'NEAL DCJ: Put your finger in her vagina.
MATTOCKS, MS: Sorry, you've put your fingers in her vagina?---Yeah. That - yeah, well, that's the accusation, yes.
So you understood that, that that was the allegation. That's what she said had happened?---Yes, okay, yeah.
And you entered a plea of guilty to that charge, to a charge of penetrating her vagina with your finger?---I – I just said yes, I was guilty to whatever I was charged with, yes.
[17] ts 39 ‑ 40.
The evidence as to the content of the legal advice which the appellant received before pleading guilty to the charges in the Magistrates Court was vague and unsatisfactory. However, regardless of the content and quality of that advice, the above passages make it clear that the appellant understood that he was charged with, and intended to plead guilty to, forcefully putting his fingers into the complainant's vagina. That understanding of the charge, for which penetration of the labia majora constitutes the element of sexual penetration,[18] did not lead the appellant to underestimate the circumstances in which he could be found guilty. In circumstances where the appellant understood the nature of the charge, and the consequences of his plea of guilty to the charge, there is no miscarriage of justice on the basis that the appellant may have pleaded guilty to 'get it over and done with' and obtain a lighter sentence.
[18] Section 319 of the Criminal Code (par (a) of the definition of 'to sexually penetrate').
The appellant's appeal counsel submitted that a plea of guilty is an admission of the elements of the offence, and is not a plea of guilty to the statement of material facts. He invites this court to make a finding that the appellant did not understand the element of sexual penetration when he entered his plea of guilty in the Magistrates Court.[19] That submission should not be accepted. The effect of the appellant's evidence in cross‑examination was that, by virtue of his having read the statement of material facts and the complainant's statement, he understood that he was being charged with forcefully putting his fingers into the complainant's vagina. While he was not pleading to a statement of material facts or the complainant's statement, he adequately understood the nature of the charge after reading those statements.
[19] Appeal ts 10, 22 ‑ 23.
The appellant's appeal counsel referred to evidence which the appellant had given to the effect that he suffers from anxiety and has a tendency to agree with people when he is feeling anxious. Counsel submitted that this was what occurred during the passages of cross‑examination referred to above.[20] That is not a finding which this court can make simply from reading the transcript, and such a finding would be inconsistent with the facts found by O'Neal DCJ after observing the appellant give evidence.
[20] Appeal ts 11 ‑ 12.
For the above reasons, it was open to O'Neal DCJ to find that the appellant understood the sexual penetration charge and intended to plead guilty hoping for the advantage of a discounted sentence and to get the matter over with. There is no proper basis for this court to make any contrary finding.
It may also be noted that O'Neal DCJ did not accept the appellant's evidence that he did not commit the offences.[21] Goetze DCJ found that it was not reasonably arguable that the appellant may not have committed the sexual penetration offence, and that there was no reasonable prospect that the appellant may not have committed the offence.[22] Those findings, which were not challenged in this appeal, further count against the existence of any miscarriage of justice in this case.
[21] ts 53.
[22] [2017] WADC 111 [56].
For these reasons, the alleged miscarriage of justice is not established in relation to the sexual penetration offence.
Disposition - stealing offence
The appellant's contention that a miscarriage of justice arose in relation to the stealing offence faces even greater hurdles. The appellant's plea of guilty to that offence in the District Court was not entered by the court on the appellant's behalf. The appellant pleaded guilty to that offence in the District Court as well as in the Magistrates Court. There is no evidence that he did not understand the nature of the stealing charge when he pleaded guilty to count 2 on the indictment in the District Court. Further, the appellant's evidence in the District Court was that the nature of the charge of stealing the complainant's mobile phone was 'pretty plain'.[23] No arguable miscarriage of justice is established in relation to the stealing charge.
[23] ts 34.
Orders
For the above reasons, leave to appeal on the sole ground of appeal should be refused, and the appeal dismissed.
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