Lawson v The State of Western Australia [No 2]
[2018] WASCA 204
•20 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAWSON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 204
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 19 OCTOBER 2018
DELIVERED : 19 OCTOBER 2018
PUBLISHED : 20 NOVEMBER 2018
FILE NO/S: CACR 164 of 2018
BETWEEN: SHAUN PHILLIP LAWSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CORBOY J
File Number : INS 213 of 2015
Catchwords:
Criminal law - Appeal against conviction following plea of guilty - Whether any miscarriage of justice - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Other applications dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Lawson v The State of Western Australia [No 3] [2018] WASCA 129
Mallard v The Queen [2003] WASCA 296
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Snook v The State of Western Australia [No 2] [2015] WASCA 104
Vella v The State of Western Australia [2006] WASCA 129
REASONS OF THE COURT:
In this appeal, the appellant seeks leave to appeal against his conviction, on his plea of guilty to a count of armed robbery. On 2 March 2017, he was sentenced for that offence, together with 33 summary charges. He appealed his sentence in relation to all of those offences. He now seeks leave to appeal against his conviction in relation to the count of armed robbery.
On 19 October 2018, the court made the following orders:
1.The appellant's application for an urgent appeal order dated 20 September 2018 is dismissed.
2.The appellant's application to undertake a lie detector examination dated 1 October 2018 is dismissed.
3.The appellant's application for leave to adduce additional evidence dated 4 October 2018 is dismissed.
4.The appellant's application to obtain and review CCTV footage of the incident dated 15 October 2018 is dismissed.
5.Leave to appeal is refused.
6.The appeal is dismissed.
The court indicated that the reasons for making these orders would be published later. These are our reasons.
Background
On 25 November 2015, the appellant pleaded guilty to an offence of armed robbery.
On 28 January 2016, the appellant pleaded guilty to 33 summary charges pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). The charged offences included dangerous driving causing grievous bodily harm, aggravated reckless driving, careless driving, possession of prohibited drugs, fraudulently altering a prescription, giving false details to police, stealing, fraud, criminal damage, stealing a motor vehicle, trespass, breach of bail and various other traffic offences.
On 1 March 2016, Corboy J placed the appellant on a 12‑month pre‑sentence order (PSO). The appellant appeared at PSO review hearings on 29 April 2016, 29 August 2016, 7 October 2016, 8 November 2016 and 20 December 2016.
On 1 March 2016, his Honour also ordered that the appellant be disqualified from holding or obtaining a motor driver's licence for a total effective period of 3 years in respect of two of the charges on the notice under s 32 of the Sentencing Act.
At the PSO review hearing on 20 December 2016, the appellant was remanded in custody for the preparation of a further report, having been remanded in custody in relation to other matters on 7 December 2016.
On 2 March 2017, Corboy J sentenced the appellant to a total effective sentence of 4 years 9 months' immediate imprisonment. His Honour ordered that the term of 4 years 9 months commence on 2 March 2017. A parole eligibility order was made.
On 2 March 2017, his Honour also ordered that the appellant be disqualified from holding or obtaining a motor driver's licence for a total effective period of 3 years 6 months in respect of the same two charges on which his Honour had imposed the total effective period of disqualification of 3 years on 1 March 2016.
The appellant's appeal against sentence was successful in relation to the motor driver's licence disqualification imposed on 2 March 2017. Otherwise, the appeal was dismissed.[1] The grounds of appeal against sentence included a ground contending that the term of imprisonment for the offence of armed robbery was manifestly excessive.[2] None of the grounds challenged the findings of fact made in relation to the armed robbery offence. The court summarised the facts relating to the armed robbery offence as follows:[3]
As to the armed robbery offence, at about 1.20 am on 12 August 2014, the appellant drove a stolen motor vehicle to a Coles Express service station in Canning Vale. He entered the store with engine oil and fuel additives which he had stolen earlier from another service station. The appellant presented the stolen items to an employee at the Coles Express service station and requested a refund. The request was refused. The appellant demanded to speak to the manager of the store. Shortly afterwards the appellant spoke by telephone to an area manager. The manager refused to authorise a refund without the production of a receipt. The appellant continued to demand a refund from the employee. The appellant removed a pair of secateurs from a pocket of his trousers. He threatened the employee with the secateurs before returning them to his pocket. The employee felt threatened by the appellant's actions and decided, out of fear for his personal safety, to process the refund. The employee gave the appellant $180 cash. The appellant left the store. The following afternoon the appellant was arrested in relation to this and other offences.
[1] Lawson v The State of Western Australia [No 3] [2018] WASCA 129 [10], [139].
[2] Ground 3 of the sentencing appeal - see Lawson [No 3] [86] ‑ [102].
[3] Lawson [No 3] [11].
The appellant was legally represented at the hearing at which he pleaded guilty to the offence of armed robbery. He was also legally represented when the pre‑sentence order was made, when the sentencing judge imposed sentences on 2 March 2017, and in his sentencing appeal.
The grounds of appeal
The appellant advances two grounds of appeal, both of which challenge his conviction for the armed robbery offence.
Ground 1 asserts that there was a miscarriage of justice by way of a mistake of fact in that, as the CCTV footage demonstrates, while the appellant did commit the offence of stealing, he did not commit the offence of armed robbery. Further, the appellant asserts that his offence was not planned or premeditated, that the secateurs were not in his pocket with a view to threatening anyone, and that he did not intend to threaten the victim.
Ground 2 asserts that he pleaded guilty to the charge of armed robbery because he was told that, by pleading guilty, his case could be fast‑tracked and he would likely be placed on a suspended term of imprisonment. Further, the appellant contends that he was of unsound mind when he pleaded guilty to the armed robbery charge.
Ground 1: disposition
The following principles concerning an appeal against a conviction entered after a plea of guilty are well established.
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence.[4]
[4] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141.
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner, a person may plead guilty 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 or she would if convicted after a plea of not guilty.[5] The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred.[6]
[5] Meissner (157).
[6] Meissner (157).
It has often been observed that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. That is particularly so when, as here, the appellant was legally represented when the plea of guilty was entered.[7] While the categories of miscarriage of justice are not closed, the cases reveal that there are three well‑recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, 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 intimidation and the like.[8]
[7] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103], [104].
[8] Vella v The State of Western Australia [2006] WASCA 129 [26]; Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [154].
It is clear from these principles that, even if the appellant were to establish that, in fact, he was not guilty of the offence, that, in itself, would be insufficient to demonstrate a miscarriage of justice arising from his conviction. In any event, the appellant has fallen well short of demonstrating that he was not guilty of the offence of armed robbery. The appellant relied heavily in this regard upon what can be seen on the CCTV footage of the incident. We have viewed the footage. In our view, taking into account what can be seen in the footage, it is plain that the appellant was guilty of the offence of armed robbery. It is not in doubt that the appellant demanded a refund for items which he had previously stolen. Nor is it in doubt that his demand was not met. It can be seen on the CCTV footage that the appellant then took the secateurs out of his pocket in a manner designed to ensure that the attendant could see them. The attendant then complied with the appellant's demand and gave him money. In the circumstances, the only reasonable inference was that, by showing the secateurs to the attendant, the appellant threatened to use violence against the attendant in order to obtain the money he had demanded. At the time of the offence, the appellant was armed with the secateurs, which were, in the circumstances, including the manner in which the appellant brandished them, an offensive weapon.
Many of the appellant's submissions concerning ground 1 involve an attempt to revisit the facts relating to the offence of armed robbery, rather than challenging whether the appellant was guilty of it. The appellant's submissions asserting the absence of premeditation fall into this category. Absence of premeditation does not make someone not guilty of armed robbery. Rather, the presence or absence of premeditation is relevant to an evaluation of the seriousness of the offence for the purpose of sentencing.
The question of what facts should be found as to the armed robbery offence falls within the ambit of an appeal against sentence, not an appeal against conviction. The appellant has exhausted his rights of appeal concerning sentence. He cannot now challenge factual findings concerning the offence under the rubric of an appeal against conviction.
For these reasons, ground 1 has no merit. Accordingly, we refused leave to appeal in respect of it.
Ground 2: disposition
We repeat the principles outlined in [17] ‑ [19] above. The essence of the appellant's complaint as to ground 2 is that he was advised that, by pleading guilty, his case could be fast‑tracked and that he would likely be given a conditional suspended sentence. That provides no basis to set aside his plea of guilty. The appellant made a rational decision to plead guilty, in the hope of receiving a favourable sentence and outcome. That his expectation or hope was ultimately disappointed is not a reason to set aside his guilty plea.
The appellant also asserts that, at the time he pleaded guilty, he was receiving treatment at Graylands Hospital and was of unsound mind. The appellant has not led any medical evidence to sustain this assertion.
For these reasons, we refused leave to appeal in respect of ground 2.
The appellant's other applications
In light of our conclusion that leave to appeal on both grounds must be refused, the appellant's application for an urgent appeal order fell away.
We dismissed the appellant's application to undertake a lie detector examination because it was not capable of materially assisting the resolution of his appeal. Given the legal principles we have outlined, acceptance of the truth of the appellant's factual assertions would not demonstrate a miscarriage of justice. It might also be observed that any attempt to rely upon evidence of a lie detector would, at the least, face substantial obstacles in light of the decision of this court's predecessor in Mallard v The Queen[9].
[9] Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1.
As we have said, the court has viewed the CCTV footage. The appellant's application to obtain and review the CCTV footage was, as the appellant explained in oral submissions, directed to ensuring that the court viewed the CCTV footage.[10] In the circumstances, we dismissed the application.
[10] Appeal ts 13.
We dismissed the appellant's application for leave to adduce additional evidence dated 4 October 2018 because none of it provides a sound basis to uphold either ground of appeal or to impugn the appellant's conviction. The substance of the proposed additional evidence is a series of documents. Most of the documents relate to the appellant's application for bail and do not bear on his appeal against conviction. To the extent they do, for the reasons already given, none of the material provides a sound basis to impugn the appellant's conviction.
Conclusion
For the above reasons, we made the orders set out at [2].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH20 NOVEMBER 2018
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