Knight v The State of Western Australia

[2014] WASC 57

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   KNIGHT -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 57

CORAM:   HALL J

HEARD:   20 DECEMBER 2014

DELIVERED          :   20 DECEMBER 2013

PUBLISHED           :  27 FEBRUARY 2014

FILE NO/S:   SJA 1093 of 2013

SJA 1095 of 2013
SJA 1143 of 2013

BETWEEN:   DREW KNIGHT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

For File No               :  SJA 1093 of 2013

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE E D CAMPIONE

File No  :PE 1093 of 2013

For File No               :  SJA 1095 of 2013

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE P M HEANEY

File No  :PE 9709 of 2010, PE 9710 of 2010, PE 9711 of 2010, PE 36949 of 2010, PE 839650 of 2010, PE 839651 of 2010

For File No               :  SJA 1143 of 2013

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE S R MALLEY

File No  :FR 11701 of 2012, FR 11702 of 2012, FR 11703 of 2012, FR 11704 of 2012, FR 4828 of 2013, PE 56789 of 2012

Catchwords:

Criminal law - Appeals against sentence and conviction - Whether time in custody properly accounted for - Whether pleas of guilty unintended or equivocal

Legislation:

Nil

Result:

Appeal against sentence allowed and appellant resentenced
Appeals against conviction dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr T McArthur

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Borsa v The Queen [2003] WASCA 254

Hogue v The State of Western Australia [2005] WASCA 102

Knight v Smith [2012] WASC 43

Liberti (1991) 55 A Crim R 120

1. HALL J:  The appellant filed three appeal notices that were listed together for hearing on 20 December 2013.  Two of the notices were appeals against conviction (SJA 1093/13 and SJA 1095/13) and the other against sentence (SJA 1143/13).  The appellant, who has at all times represented himself, sought an adjournment of the conviction appeals.  He said that he had been unable to adequately prepare those appeals because he was still in prison.  Those appeals were adjourned to a set date, being Monday, 17 February 2014.  The sentence appeal proceeded on 20 December 2013 and at the conclusion of the hearing I allowed that appeal and resentenced the appellant.

2. The conviction appeals were listed for hearing on 17 February 2014.  Prior to that day the appellant had been released from prison and had been in communication with the court about the hearing date.  He was aware of the date and there was no suggestion that he could not attend.  He did not appear at the hearing and was not represented.  Having considered the documents filed by the appellant in respect of the conviction appeals I concluded that they were without merit and refused leave to appeal.

3. The following are my reasons for the conclusions reached in respect of each of the three appeals.

Sentence - Appeal SJA 1143/13

1. This appeal against sentence relates to several breaches of police orders, breach of a violence restraining order and an offence of aggravated assault. 

2. On 26 September 2013 the appellant was sentenced to a total effective sentence of 8 months' imprisonment for the offences.  The individual sentences imposed were as follows:

   1.Charge FR11701/12 - Breach of police order - 1 month's imprisonment concurrent.

   2.Charge FR11702/12 - Breach of police order - 1 month's imprisonment concurrent.

   3.Charge FR11703/12 - Breach of police order - 1 month's imprisonment concurrent.

   4.Charge FR11704/12 - Aggravated assault - 8 months' imprisonment.

   5.Charge PE56789/12 - Breach of a violence restraining order - 6 month's imprisonment concurrent.

3. The head sentence was that imposed on FR11704/12.

4. This appeal was commenced out of time and an extension was required.  However, the delay was short and given that the appellant was self‑represented and had been in custody the delay was understandable and I therefore granted an extension of time.

5. The appellant's grounds were unclear from his appeal notice but, as explained by him at a directions hearing, the issues that he wished to raise were whether the magistrate erred by not taking into account the true value of the plea of guilty, whether the magistrate erred by not taking into account what the appellant described as 'clean street time on a pre‑sentence order' and whether the magistrate had given sufficient credit for time spent in custody.

6. It is important to note that when the appellant had originally been convicted of these offences he had been placed on a pre‑sentence order in the Magistrates Court.  That had occurred in March 2013.  It would appear from the prosecution notices that he entered pleas of guilty at an early stage.  He then committed further offences and breached the pre‑sentence order and came before the Magistrates Court on 26 September 2013 to be sentenced for the original and the further offences.  It is the period of time served on the pre‑sentence order before it was breached that the appellant refers to as 'clean street time'.

7. The facts of the offences were not in dispute.  They involved events that occurred between 26 and 28 November 2012.  In the early hours of the morning of 26 November 2012 the police attended at the appellant's home in Mount Pleasant where he was then residing with the complainant, his de facto partner.  The appellant and the complainant had engaged in a heated argument.  During the course of the argument the appellant grabbed the complainant's wrists and pulled her, causing redness and bruising.  A police order was issued, directing the appellant not to approach, communicate or attempt to communicate with the complainant.  The appellant breached the police order on three occasions by sending text messages to the complainant, attending at the Mount Pleasant house and telephoning the complainant at home.  The Perth Magistrates Court issued a violence restraining order on 26 November 2012 that directed the appellant not to communicate or attempt to communicate with the complainant or to approach within 50 metres of her. 

8. At about 5.30 pm on Sunday, 16 December 2012 the appellant saw the complainant driving her vehicle in Waterford.  Whilst both cars were stationary he got out of his vehicle and approached the driver's side window of the complainant's vehicle.  He told the complainant to pull down her window.  When she drove away he followed and forced her to stop.  He then got out again and approached the complainant's car shouting, 'Pull down the window'.  He then kicked the driver's window of the complainant's car.  This was witnessed by other motorists who were forced to stop.  The complainant pulled her vehicle into a side street where the appellant followed her.  He again got out of his car and said, 'Why - why don't you tell me - just tell me why'.  These actions occurred in breach of the violence restraining order.

9. The lawyer who appeared for the appellant in the Magistrates Court accepted that the offences were serious and that the magistrate could well take the view that imprisonment was called for.  The lawyer advised the magistrate that the appellant had been in custody in respect of the charges for two periods of time.  They were from 21 December 2012 to 12 March 2013, when he was released on bail, and again from 23 May 2013 until the date of sentencing.  This was said to total 209 days in custody.  The lawyer invited the magistrate to backdate any sentence imposed to 6 March 2013.  The following exchange then occurred:

   HIS HONOUR:  Has he been in custody since that time?

   ….., MR:  He has. Well, he has not been in custody since 6 March.  He was in custody for those two periods that I provided to your Honour.

   HIS HONOUR:  See, I can't backdate it to that date.

   ……, MR:  Well - - -

   HIS HONOUR:  I can't - I can take it into account in the level of my sentence.  In other words, for instance, I might give him normally - say, I might give him 12 months.  I can see, well, he has communally spent two months in custody which equates to effectively four months - - -

   ……, MR:  Yes.

   HIS HONOUR:  - - - so I will reduce the 12 months to eight months.  That's the only way I can do it.  I can backdate it to the last time he was put in custody - - -

   ……, MR:  That was 23 May, your Honour.

   HIS HONOUR:  23 May.

   ……, MR:  So 23 May, if your Honour - - -

   HIS HONOUR:  If I go down that track, 23 May - - -

   ……, MR:  Yes.

   HIS HONOUR:  - - - was when he was placed into custody.

   ……, MR:  That's right.

   HIS HONOUR:  And - - -

   ……, MR:  Before that he had two and half months in addition in custody, from 21 December through to 12 March.

   HIS HONOUR:  Okay.  And then you just take that into account in relation to - - -

   ……, MR:  In the head sentence.

   HIS HONOUR:  - - - any sentence you pass (ts 12 - 13).

10. In sentencing the appellant the magistrate said:

    But I've taken into account your plea of guilty on the matter and the time spent in custody in relation to that particular matter.  I otherwise would've imposed a term of 12 months imprisonment.  I've deducted 20 per cent, effectively two months, for your plea of guilty and I've deducted two months for time spent in custody that I couldn't - that I can't backdate to.  So it will be eight months imprisonment and that will be backdated to 24 May, 2013 (ts 15).

11. It is clear that the magistrate intended to give full credit for all of the time spent by the appellant in custody. Because there had been two distinct periods in custody separated by a period when the appellant was at liberty the magistrate considered that he should deal with the two periods in different ways. These two ways are sanctioned by s 87 of the Sentencing Act 1995 (WA).

12. The second period was taken into account by backdating the sentence to 23 May 2013.  The first period was to be taken into account by reducing the sentence.  The magistrate stated that he was giving two months credit for that period of time in custody.  It would appear that he intended, by doing so, to give full credit for the first period of time spent in custody.  However, the magistrate did not achieve his intended objective.  That is because the time spent in custody in this first period was in fact 81 days.  That period of time was confirmed by the Sentence Information Unit of the Department of Corrective Services at the hearing of the appeal.

13. In the circumstances I was satisfied that the magistrate erred in only allowing two months credit for the first period of time in custody.  It would appear that this was a simple miscalculation.  The magistrate intended to give full credit for the time in custody but under‑estimated the length of that time.  There was no reason why the appellant should not have been given full credit for that time.  For those reasons the appeal was allowed and the appellant was resentenced.

14. The appellant also submitted that he was not given sufficient credit for his plea of guilty.  The magistrate said that he had allowed a 20% discount for the plea of guilty from the 12 month' imprisonment figure that was his starting point.  His Honour calculated that that was an effective discount of 2 months.  In fact, as the appellant points out, two months is less than 20% of a 12 month sentence.  That error was, however, a small one that would not in itself justify allowing the appeal.  However, it is a matter that I took into account in resentencing.

15. As regards the appellant's claim that he was not given credit for the 'clean street time', this was not a matter raised with the magistrate.  There was no information before the magistrate or at the hearing of this appeal as to how the appellant had performed on the pre‑sentence order.  What is apparent is that within a relatively short time of being placed on the pre‑sentence order the appellant committed three offences of stealing, on 1 May 2013, 2 May 2013 and 5 May 2013.  In these circumstances it is difficult to accept that the appellant's performance on the pre‑sentence order would have been deserving of being treated as a factor favourable to him.

16. The failure to give full credit for the full amount of time in custody and the failure to provide the full 20% that the magistrate intended by way of a discount for the plea of guilty were addressed at the hearing of the appeal by resentencing the appellant on charge FR11704/12. Whilst I consider that the sentences imposed by the magistrate for the individual charges were appropriate, in order to achieve the discounts that needed to be given for the time spent in custody and the plea of guilty the sentence on count FR11704/12 was set aside and a sentence of 7 months' imprisonment was imposed for that offence backdated to 24 May 2013. In doing so I allowed a discount of 20% for the plea of guilty: s 9AA Sentencing Act.

17. The orders in respect of this appeal were as follows:

    1.Extension of time allowed.

    2.Leave to appeal granted.

    3.The appeal is allowed.

    4.The sentence on charge FR11704/12 is set aside and in lieu thereof a sentence of 7 months' imprisonment backdated to 24 May 2012 is imposed.  The other sentences will stand as originally imposed by the magistrate.

Conviction appeals - SJA 1093/13 and SJA 1095/13

1. These two appeals against conviction relate to convictions that occurred in the Magistrates Court in 2012 and 2010 respectively.  They raise similar issues so I will deal with them together.

2. As regards SJA 1095/13, on 18 November 2010 the appellant was sentenced for a number of offences including three of aggravated assault (PE9709/10 to PE9711/10), an offence of assault occasioning bodily harm (PE36949/10), an offence of driving whilst disqualified (PE839650/10) and an offence of failing to approach and enter an intersection to the left (PE839651/10).  He received sentences of 6 months' imprisonment on each of the assault offences backdated to 31 May 2010, 6 months' imprisonment on the driving whilst disqualified offence also backdated to 31 May 2010 together with 9 months' driver's licence disqualification and a fine of $250 for the other traffic offence.  The sentences of imprisonment were all made concurrent.  The appellant had entered pleas of guilty to these offences on 28 September 2010.  Notwithstanding his guilty pleas he sought to appeal against the convictions on the basis that other convictions entered on the same day had been set aside on appeal.

3. The appeal to which the appellant is referring is Knight v Smith [2012] WASC 43. That appeal related to one stealing charge and one burglary charge to which the appellant had pleaded guilty on 28 September 2010 and for which he was also sentenced on 18 November 2010. The reason why those convictions were set aside on appeal was that the appellant's pleas in respect of those charges were equivocal. He had expressly stated that he was reluctant to plead guilty to those charges and said that he denied stealing anything but would 'nod to it rather than wait for a trial and stick it out in prison'. Unsurprisingly, the DPP accepted on that appeal that a miscarriage of justice had occurred because it was plain that the appellant's pleas of guilty were not unequivocal.

4. The transcript of 28 September 2010 reveals that, unlike the pleas for the stealing and burglary charges, the appellant's pleas of guilty in respect of the charges the subject of this appeal were entirely unequivocal.  Indeed, when asked by the magistrate why the matter had been set down for a trial allocation date the appellant said, 'I think all along we, we wanted to take responsibility and show remorse for it and we were just trying to sort things out with the police, so I think all along we intended on getting them all dealt with at the same time and pleading guilty to everything'.  It is evident from this that the appellant had made a considered decision to enter pleas of guilty and that he hoped to obtain the maximum credit for doing so.  The fact that he expressed reservations in respect of the stealing and burglary charges but not any of the other charges indicates that he was able to clearly express himself if he had any such reservations and did not choose to do so in respect of the charges the subject of this appeal.

5. The charge that is the subject of SJA 1093/13 is a charge of trespass contrary to s 70A of the Criminal Code (WA) that was dealt with in the Magistrates Court on 27 September 2012. The appellant had originally been charged with burglary and that was one of the charges that was the subject of the earlier appeal against conviction. The conviction on that charge was overturned and the matter remitted to the Magistrates Court. When the matter was mentioned on 27 September 2012 the prosecution made an application to amend the charge to one of trespass. The appellant then entered a plea of guilty to that charge. Having regard to the fact that the appellant had spent some time in prison before his appeal on the burglary charge succeeded, the magistrate determined that it was appropriate to impose no punishment for the trespass offence pursuant to s 46 of the Sentencing Act 1995 (WA).

6. The appellant submitted that at the time he appeared in the Magistrates Court on 27 September 2012 he was traumatised and entered a plea of guilty without intending to do so.  This is not borne out by the transcript.  After the amendment was made the magistrate read out the charge and asked whether the appellant understood it.  He responded that he did and then pleaded guilty.  He was represented on this occasion.  There is no proper basis for suggesting that the plea of guilty was unintended or equivocal.

7. Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction even where a plea of guilty has been made. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122 (Kirby P, Grove & Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA) and Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing).

8. Before an appellate court will set aside a conviction based upon a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice:  Hogue [22], Borsa [20]. In Borsa Steytler J referred to three well recognised circumstances in which a conviction based on a plea of guilty will be set aside:

   1.where the appellant did not understand the nature of the charge and did not admit guilt;

   2.if, upon the admitted facts, the appellant could not in law have been guilty of the offence; and

   3.where the guilty plea has been obtained by improper inducement, fraud or the like.

9. None of those circumstances have been established in the present case.  At best what Mr Knight is asserting is that he has changed his mind and now wishes to renounce his pleas of guilty.  However, the unequivocal evidence is that those pleas of guilty were freely made and were without reservation.  No miscarriage of justice has been established.

10. These two appeals were commenced well outside the permitted time.  No satisfactory reason for the delay has been provided.  In any event, neither of the appeals has any prospect of success.  In those circumstances the appeals in SJA 1093 and 1095 were dismissed.  The orders were as follows:

    1.Extension of time to appeal on each appeal refused.

    2.Appeals dismissed.